City of Irwindale
5050 N. IRWINDALE AVE., IRWINDALE CA 91706 • PHONE: (626) 430-2200 • FACSIMILE: 962-4209
NOTICE AND AGENDA FOR THE
*AMENDED*
SPECIAL AND REGULAR MEETING OF THE
CITY COUNCIL
SUCCESSOR AGENCY TO THE
IRWINDALE COMMUNITY REDEVELOPMENT AGENCY
HOUSING AUTHORITY
JULY 26, 2023
SPECIAL MEETING – 5:00 P.M.
REGULAR MEETING - 6:30 P.M.
IRWINDALE CITY COUNCIL CHAMBER
Via Zoom Webinar at https://us02web.zoom.us/j/87104592389 Webinar ID: 871 0459 2389
Spontaneous Communications: The public is encouraged to address the City Council on any matter listed on the agenda or on any other matter within its jurisdiction. The City Council will hear public comments on items listed on the agenda during discussion of the matter and prior to a vote. The City Council will hear public comments on matters not listed on the agenda during the Spontaneous Communications period.
Pursuant to provisions of the Brown Act, no action may be taken on a matter unless it is listed on the agenda, or unless certain emergency or special circumstances exist. The City Council may direct staff to investigate and/or schedule certain matters for consideration at a future City Council meeting.
Americans with Disabilities Act: In compliance with the ADA and Government Code section 54953(g), the City Council has adopted a reasonable accommodation policy to swiftly resolve accommodation requests. The policy can be found on the City’s website:
https://www.irwindaleca.gov/DocumentCenter/View/8075/AB-2449-Reasonable-Accommodation-Policy. If you need special assistance to participate in a City Council or Commission meeting or other services offered by this City, including an electronic or printed copy of the City’s reasonable accommodation policy, please contact City Hall at (626) 430-2200. Notification of at least 48 hours prior to the meeting or time when services are needed will assist the City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or service. Note: Staff reports are available for inspection at the office of the Chief Deputy City Clerk, City Hall, 5050 N. Irwindale Avenue, during regular business hours (8:00 a.3m. to 6:00 p.m., Monday through Thursday).
Note: Staff reports are available for inspection at the office of the Chief Deputy City Clerk, City Hall, 5050 N. Irwindale Avenue, during regular business hours (8:00 a.m. to 6:00 p.m., Monday through Thursday).
H. MANUEL ORTIZ
MAYOR
ALBERT F. AMBRIZ
Mayor pro tem
MARK A. BRECEDA
councilmember
LARRY G. BURROLA
councilmember
MANUEL R. GARCIA
Councilmember
July 26, 2023
Code of Ethics
As City of Irwindale Council Members, our fundamental duty is to serve the public good. We are committed to the principle of an efficient and professional local government. We will be exemplary in obeying the letter and spirit of Local, State and Federal laws and City policies affecting the operation of the government and in our private life. We will be independent and impartial in our judgment and actions.
We will work for the common good of the City of Irwindale community and not for any private or personal interest. We will endeavor to treat all people with respect and civility. We will commit to observe the highest standards of morality and integrity, and to faithfully discharge the duties of our office regardless of personal consideration. We shall refrain from abusive conduct, personal charges or verbal attacks upon the character or motives of others.
We will inform ourselves on public issues, listen attentively to public discussions before the body, and focus on the business at hand. We will base our decisions on the merit and substance of that business. We will be fair and equitable in all actions, claims or transactions. We shall not use our official position to influence government decisions in which we have a financial interest or where we have a personal relationship that could present a conflict of interest, or create a perception of a conflict of interest.
We shall not take advantage of services or opportunities for personal gain by virtue of our public office that are not available to the public in general. We shall refrain from accepting gifts, favors or promises of future benefit that might compromise our independence of judgment or action or give the appearance of being compromised.
We will behave in a manner that does not bring discredit or embarrassment to the City of Irwindale. We will be honest in thought and deed in both our personal and official lives.
Ultimate responsibility for complying with this Code of Ethics rests with the individual elected official. In addition to any other penalty as provided by law, violation of this Code of Ethics may be used as a basis for disciplinary action or censure of a Council Member.
These things we hereby pledge to do in the interest and purposes for which our government has been established.
Irwindale City Council
July 26, 2023
SPECIAL MEETING– 5:00 P.M.
CALL TO ORDER
ROLL CALL: Councilmembers:, Mark A. Breceda, Larry G. Burrola, Manuel R. Garcia; Mayor Pro Tem Albert F. Ambriz; Mayor H. Manuel Ortiz
AB 2449 DISCLOSURES
Remote participation by a member of the legislative body for just cause or emergency circumstances
SPONTANEOUS COMMUNICATIONS
Spontaneous communications are limited to the special meeting agenda items only.
RECESS TO CLOSED SESSION
1. Conference with Real Property Negotiator
Pursuant to California Government Code Section 54956.8
Property: Olive Pit (APN 8415-001-906, 908)
Agency negotiator: Julian A. Miranda, City Manager and Eddie Chan, Director of Engineering / Building Official
Negotiating Parties: United Rock Products Corp.
Under negotiation: Sublease Price and Terms
2. Conference with Legal Counsel – Existing Litigation
Pursuant to California Government Code Section 54956.9
Name of Case: Five Points, LP vs. City of Irwindale
Case Number: 22STCV01394
3. Conference with Labor Negotiators
Pursuant to Government Code Section 54957.6
Agency Designated Representative: Julian A. Miranda, City Manager Unrepresented Employee: Adrian Guerra, City Attorney
4. *Liability Claims
Pursuant to Government Code Section 54956.95
Claimant: Calmat Co. d.b.a. Vulcan Materials Company
Agency claimed against: City of Irwindale
July 26, 2023
RECONVENE IN OPEN SESSION
REPORT FROM CLOSED SESSION
ADJOURNMENT
*Agenda amended on Tuesday, July 25, 2023, at 10:50 a.m. to add Item No. 4 to the Closed Session agenda and to remove Milah Butler as Pledge of Allegiance Leader
OPEN SESSION – 6:30 P.M.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
INVOCATION
ROLL CALL: Councilmembers:, Mark A. Breceda, Larry G. Burrola, Manuel R. Garcia; Mayor Pro Tem Albert F. Ambriz; Mayor H. Manuel Ortiz
CHANGES TO THE AGENDA
COUNCIL MEMBER TRAVEL REPORTS
COUNCILMEMBER COMMENTS
INTRODUCTION OF NEW EMPLOYEES/PROMOTIONS
PROCLAMATIONS / PRESENTATIONS / COMMENDATIONS
Irwindale Chamber of Commerce Business of the Month – Opportunities for Learning Recognition of Irwindale Police Officer James Armstrong for his graduation from the Los Angeles County Sheriff’s Special Enforcement Bureau (SEB) SWAT School
Presentation by the San Gabriel Valley Water Quality Authority
CONSENT CALENDAR
The Consent Calendar contains matters of routine business and is to be approved with one motion unless a member of the City Council requests separate action on a specific item. At this time, members of the audience may ask to be heard regarding an item on the Consent Calendar.
July 26, 2023
1. Minutes
Department: Administration / City Clerk
Recommendation: Approve the following minutes:
A. Special joint meeting held June 28, 2023
B. Regular meeting held June 28, 2023
C. Special joint meeting held July 12, 2023
D. Regular meeting held July 12, 2023
2. Warrants/Demands/Payroll
Department: Finance
Recommendation: Approve
3. Investment Quarterly Report for Fiscal Quarter Ending June 30, 2023 (Joint Item with Successor Agency and Housing Authority)
Department: Finance
Recommendation: That the City Council, Successor Agency Board, and Housing Authority Board receive and file the Investment Quarterly Report for the fiscal quarter ending June 30, 2023.
4. Authorize City Manager to Execute Contract Service Agreements with Royal Coaches Auto Body and Towing and Jan’s Towing Inc., for Towing Services Department: Police
Recommendation: Adopt Resolution No. 2023-33-3411 entitled, “A RESOLUTION OF THE
CITY COUNCIL OF THE CITY OF IRWINDALE AWARDING NON-EXCLUSIVE FRANCHISES AND
AUTHORIZING THE CITY MANAGER TO EXECUTE CONTRACT SERVICE AGREEMENTS WITH ROYAL COACHES AUTO BODY AND TOWING AND JAN’S TOWING INC., FOR TOWING SERVICES”.
5. 2
nd Reading – Ordinance No. 771
Department: Community Development
Recommendation: Adopt on second reading Ordinance No. 771 entitled: “AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE APPROVING DEVELOPMENT AGREEMENT NO. 01-2022 BETWEEN CITY OF IRWINDALE AND KBS
HOLDCO LLC, DBA REGENCY OUTDOOR ADVERTISING, TO ALLOW FOR THE DIGITAL
CONVERSION OF AN EXISTING STATIC BILLBOARD LOCATED AT THE INTERSECTION OF THE I-605 (NORTHBOUND) AND THE I-210 (EASTBOUND) FREEWAYS (APN: 8533-009-014) IN THE M-2 (HEAVY MANUFACTURING) ZONE SUBJECT TO THE CONDITIONS AS SET FORTH HEREIN AND MAKING FINDINGS IN SUPPORT THEREOF; AND FINDING THE PROJECT EXEMPT FROM THE PROVISIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT” July 26, 2023
6. Renewal of Contract Agreement with the City of Santa Fe Springs for City-Wide Traffic Signal Maintenance Services
Department: Engineering
Recommendation: Authorize the City Manager to execute an agreement with the City of Santa Fe Springs for city-wide traffic signal maintenance services.
7. Approval of Contract Agreement with San Bernardino County Sheriff’s Department for Firing Range Use
Department: Police
Recommendation: Authorize the Chief of Police to enter into an agreement with the San Bernardino County Sheriff Department allowing for the periodic use of their firing range.
8. Approval of Tolling Agreement with Calmat Co., d.b.a. Vulcan Materials Company regarding the Protest of Development Impact Fees for 15990 East Foothill Boulevard Department: City Attorney
Recommendation: Approve the proposed Tolling Agreement with Calmat Co., d.b.a.
Vulcan Materials Company regarding the protest of development impact fees for 15990 East Foothill Boulevard.
9. Approve the Purchase of a Reel Mower
Department: Public Services
Recommendation: Adopt Resolution No. 2023-63-3441 entitled, “A RESOLUTION OF THE
CITY COUNCIL OF THE CITY OF IRWINDALE WAIVING THE FORMAL BIDDING PROCEDURES PURSUANT TO IRWINDALE MUNICIPAL CODE SECTION 3.44.080€, AUTHORIZING THE
ISSUANCE OF A PURCHASE ORDER AND AUTHORIZING THE CITY MANAGER TO ENTER
INTO A PURCHASE AGREEMENT FOR THE PURCHASE OF A REEL MOWER FOR THE PUBLIC SERVICES MAINTENANCE DIVISION”.
10. Award of Contract for Construction of the Traffic Signal Modifications Project at Arrow Highway and Vincent Avenue; P-980
Department: Engineering
Recommendation: (1) Adopt Resolution No. 2023-62-3440; (2) authorize the City Manager to enter into an agreement with MSL Electric Inc, in the amount of $90,000.00 for the Traffic Signal Modifications Project at Arrow Highway and Vincent Avenue, subject to City Attorney approval as to form; and (3) approve a 20% project contingency in the amount of $18,000.00 to cover any unforeseeable conditions that may arise during construction.
July 26, 2023
SPONTANEOUS COMMUNICATIONS
This is the time set aside for members of the audience to speak on items not on this agenda. State law prohibits any Council discussion or action on such communications unless 1) the Council by majority vote finds that a catastrophe or emergency exists; or 2) the Council by at least four votes finds that the matter (and need for action thereon) arose within the last five days. Since the Council cannot (except as stated) participate it is requested that all such communications be made in writing so as to be included on the next agenda for full discussion and action.
Any public member addressing the Board shall limit his or her address to three (3) minutes regarding the subject under discussion. If a member of the public wishes to donate their time to another speaker, both persons must be physically present and in attendance of the meeting. In no event shall any donations of time exceed six minutes of total speaking time per person on any one item. The Presiding Officer may, in his or her discretion, extend the 3-minute time limitation for the particular subject under discussion for all speakers. In no event shall the total amount of speaking time exceed 6 minutes per person for the subject under discussion. Organized group of persons wishing to address the Board on the same subject matter, should select a spokesperson to represent the group, so as to avoid unnecessary repetition. The City Council may regulate a speaker who is speaking too long, being unduly repetitious, or extending discussion of irrelevancies.
In the hybrid format, both in-person and hybrid audience members will participate in the following order:
Tier 1: In-person attendees
Tier 2: Teleconference attendees
Tier 3: In-person and teleconference attendees who have not previously provide comments on the matter(s) being discussed by the legislative body
NEW BUSINESS
At this time, members of the audience may ask to be heard regarding an item on New Business.
11. Review of Draft Ordinances for the Proposed Regulation of Unmanned Aircraft Systems and Drones
Department: Legal Counsel
Recommendation: Review and comment on proposed ordinances and provide further direction to staff regarding the proposed ordinances.
PUBLIC HEARINGS
At this time, members of the audience may ask to be heard regarding an item on Public Hearings.
CITY MANAGER’S REPORT
REQUESTS BY COUNCILMEMBERS FOR FUTURE AGENDA ITEMS
ADJOURN
July 26, 2023
SUCCESSOR AGENCY TO THE IRWINDALE
COMMUNITY REDEVELOPMENT AGENCY
AB 2449 DISCLOSURES
Remote participation by a member of the legislative body for just cause or emergency circumstances
CONSENT CALENDAR
12. Minutes
Recommendation: Approve the following minutes:
A. Regular meeting held June 28, 2023
B. Regular meeting held July 12, 2023
13. Warrants
Recommendation: Approve
14. Investment Quarterly Report for Fiscal Quarter Ending June 30, 2023 (Joint Item with City Council and Housing Authority)
Department: Finance
Recommendation: Recommendation: That the City Council, Successor Agency Board, and Housing Authority Board receive and file the Investment Quarterly Report for the fiscal quarter ending June 30, 2023.
SPONTANEOUS COMMUNICATIONS
This is the time set aside for members of the audience to speak on items not on this agenda.
Spontaneous Communications for the Successor Agency are subject to the same State prohibitions and City guidelines as cited on the City Council agenda.
NEW BUSINESS
At this time, members of the audience may ask to be heard regarding an item on New Business.
PUBLIC HEARINGS
At this time, members of the audience may ask to be heard regarding an item on Public Hearings.
ADJOURN
July 26, 2023
HOUSING AUTHORITY
AB 2449 DISCLOSURES
Remote participation by a member of the legislative body for just cause or emergency circumstances
CONSENT CALENDAR
15. Minutes
Department: Administration / City Clerk
Recommendation: Approve the following minutes:
A. Special joint meeting held June 28, 2023
B. Regular meeting held June 28, 2023
C. Special joint meeting held July 12, 2023
16. Investment Quarterly Report for Fiscal Quarter Ending June 30, 2023 (Joint Item with City Council and Successor Agency)
Department: Finance
Recommendation: Recommendation: That the City Council, Successor Agency Board, and Housing Authority Board receive and file the Investment Quarterly Report for the fiscal quarter ending June 30, 2023.
SPONTANEOUS COMMUNICATIONS
This is the time set aside for members of the audience to speak on items not on this agenda.
Spontaneous Communications for the Housing Authority are subject to the same State prohibitions and City guidelines as cited on the City Council agenda.
NEW BUSINESS
At this time, members of the audience may ask to be heard regarding an item on New Business.
PUBLIC HEARINGS
At this time, members of the audience may ask to be heard regarding an item on Public Hearings.
ADJOURNMENT
AFFIDAVIT OF POSTING
I, Laura M. Nieto, Chief Deputy City Clerk, certify that I caused the agenda for the regular meeting of the City Council, Irwindale Successor Agency to the Irwindale Community Redevelopment Agency, and Housing Authority, to be held on July 26, 2023, be posted at the City Hall, Library, and Post Office on July 20, 2023.
Laura M. Nieto, MMC
Laura M. Nieto, MMC
Chief Deputy City Clerk
IRWINDALE CITY COUNCIL CHAMBERS
5050 N. IRWINDALE AVENUE
IRWINDALE, CALIFORNIA 91706
CC Item 1A
HA Item 15A JUNE 28, 2023
WEDNESDAY
5:00 P.M.
The Irwindale CITY COUNCIL and HOUSING AUTHORITY met in special joint session at the above time and place.
ROLL CALL: Present: Council I Board members Mark A. Breceda, Larry G. Burrola, Manuel R. Garcia; Mayor Pro Tern Albert F. Ambriz;
Mayor H. Manuel Ortiz
Also Present: Julian A. Miranda, City Manager I Executive Director; Adrian Guerra, City Attorney I General Counsel; and Laura Nieto, Chief Deputy City Clerk I Chief Assistant Authority Secretary AB 2449 DISCLOSURES None.
SPONTANEOUS
COMMUNICATIONS
RECESS TO
CLOSED SESSION
None.
At 5:02 p.m., the City Council met in Closed Session to discuss the following:
Conference with Legal Counsel - Anticipated Litigation
Significant Exposure to Litigation (Pursuant to Government Code Sections 54956.9(c), (d)(2), e (5))
A point has been reached where, in the opinion of the City Council, upon the advice of its legal counsel based on existing facts and circumstances, that there is significant exposure to litigation against the City. The existing facts and circumstances consist of a Second Tolling Agreement between the City of Irwindale and BKK Working Agreement effective September 25, 2020, for a term of three years whereby BKK Working Group has notified the City that it may allegedly have liability based upon, according to the BKK Working Group, alleged disposal of waste material in connection with the BKK Landfills in West Covina. The Second Tolling Agreement tolls any applicable statute of limitations governing claims that BKK Working Group could assert against the City that may result in litigation against the City. A copy of the Second Tolling Agreement is included in this agenda package for public review and available for review in the City Clerk's office upon request.
Number of Cases: One
ACTION: Update provided; direction given; no reportable action
CITY COUNCIL AND HOUSING AUTHORITY MINUTES
SPECIAL MEETING
Conference with Legal Counsel - Existing Litigation
JUNE 28, 2023
PAGE2
Pursuant to Government Code Sections 54954.5(c), 54956.9(d)(1) A) Name of Case: Five Points, LP vs. City of Irwindale
Case Number: 22STCV01394
ACTION: Update provided; no direction or action taken
B) Name of Case: City of Long Beach, et al. v. Monsanto Company, et al.
Case Number: 2:16-cv-03493-FMO-AS (United States District Court, Central District of California - Western Division) Note: City is a Settlement Class Member in this Class Action Lawsuit
ACTION: Update provided; no direction or action taken
Conference with Real Property Negotiators
Pursuant to California Government Code Section 54956.8
A) Property: 16154 Arrow Highway (APNS 8417-029-024 and 025) Agency negotiator: Marilyn Simpson, Community Development Director
Negotiating Parties: Rudolfo A. Dominguez, Trustee
Under Negotiation: Price and terms of payment
Note: This is a Housing Authority Item
ACTION: Update provided; no direction or action taken
B) Property: 14905 Los Angeles Street, Irwindale, CA
Agency negotiator: Julian Miranda, City Manager
Negotiating Parties: Marianna Diaz
Under negotiation: Price and terms of payment
Note: This is a Housing Authority Item
ACTION: Direction provided to staff; no reportable action taken C) Property: Olive Pit (APN 8415-001-906, 908)
Agency negotiator: Julian A. Miranda, City Manager and Eddie Chan, Director of Engineering I Building Official
Negotiating Parties: United Rock Products Corp.
Under negotiation: Sublease Price and Terms
ACTION: Update provided; direction provided to staff; no reportable action taken
CITY COUNCIL AND HOUSING AUTHORITY MINUTES
SPECIAL MEETING
JUNE 28, 2023
PAGE3
RECONVENE IN
OPEN SESSION
ADJOURNMENT
Conference with Legal Counsel - Anticipated Litigation
Initiation of Litigation (Pursuant to Government Code Section 54956.9 (d)(4)
Number of Cases: One
ACTION: Information provided, no direction or action taken Conference with Labor Negotiators
Pursuant to Government Code 54957.6
Agency Designated Representative: Julian A. Miranda, City Manager
Unrepresented Employee: Adrian Guerra, City Attorney
ACTION: Discussed; direction provided to City Manager
At 6:33 p.m., the City Council reconvened in Open Session with all members present.
There being no further business to conduct, the meeting was adjourned at 6:35 p.m.
Laura M. Nieto, MMC
Chief Deputy City Clerk
CC Item 18
IRWINDALE CITY COUNCIL CHAMBERS
5050 N. IRWINDALE AVENUE
IRWINDALE, CALIFORNIA 91706
I JUNE 28, 2023
WEDNESDAY
6:35 P.M.
The Irwindale CITY COUNCIL met in regular session at the above time and place.
ROLL CALL:
PLEDGE OF
ALLEGIANCE
Present: Councilmembers Mark A. Breceda, Larry G. Burrola, Manuel R. Garcia; Mayor Pro Tern Albert F. Ambriz;
Mayor H. Manuel Ortiz
Also Present: Julian A. Miranda, City Manager; Adrian Guerra, City Attorney; Christopher Hofford, Chief of Police; Theresa Olivares, Assistant City Manager; Kambiz Borhani, Director of Finance I City Treasurer; Marilyn Simpson, Community Development Director; Eddie Chan, Director of Engineering I Building Official; Mary Hull, Human Resources Manager, and Laura Nieto, Chief Deputy City Clerk
The Pledge of Allegiance was led by Ella Burrola.
AB 2449 DISCLOSURES None.
CHANGES TO THE
AGENDA
CITY MANAGER
MIRANDA
COUNCILMEMBER
TRAVEL REPORTS
MAYOR PRO TEM
AMBRIZ
COUNCILMEMBER
COMMENTS
MAYOR PRO TEM
AMBRIZ
MAYOR ORTIZ
City Manager Miranda noted that the update from the San Gabriel Valley Water Quality Authority will be moved to the meeting of July 26, and noted a correction to Consent Calendar Item No. 7.
Mayor Pro Tern Ambriz reported on his attendance at a recent Gold Line meeting and provided an update on the project. He also commended staff from the Senior Center for the recent Father's Day Picnic and congratulated Senior Commissioner Pat Gonzales on being crowned the Senior Prom Queen.
Mayor Pro Tern Ambriz requested that a letter of recognition be prepared to recognize the volunteers and participants of the West Covina National Little League and requested that they be recognized at the next meeting.
Mayor Ortiz indicated that he recently toured the new Cancer Medical Center at the Emanate Queen of the Valley Hospital in West Covina and advised that the new facility would likely open in September. He also spoke on his attendance at the First Responders and Military
CITY COUNCIL MINUTES
REGULAR MEETING
INTRODUCTION OF
NEW EMPLOYEES I
JUNE 28, 2023
PAGE2
Legislative Breakfast sponsored by Congresswoman Napolitano, where Irwindale Sergeant Diego Cornejo was recognized.
PROMOTIONS None.
PROCLAMATIONS I
PRESENTATIONS I
COMMENDATIONS
PROCLAMATION -
PARKS MAKE LIFE
BETTER
UPDATE FROM THE
SGVWQA
PUBLIC HEARINGS
ITEM NO. 1
ADOPTION OF THE
FY 23/24 BUDGET
CITY MANAGER
MIRANDA
OPEN
PUBLIC HEARING
NICOLE SHAHANIAN
CLAUDIA LINN
CLOSE
PUBLIC HEARING
ORDINANCE NO. 770
ADOPTED ON
SECOND READING
PROCLAMATION - PARKS MAKE LIFE BETTER
The proclamation was made.
UPDATE FROM THE SAN GABRIEL VALLEY WATER QUALITY
AUTHORITY
The update was continued to the meeting of July 26.
ADOPTION OF THE FISCAL YEAR 2023-24 BUDGET
City Manager Miranda presented the staff report.
At 6:51 p.m., Mayor Ortiz opened the public hearing.
Nicole Shahanian, CEO of the Irwindale Chamber of Commerce, thanked the Council for considering its contract at tonight's meeting and informed that she would be moving on to work for another Chamber of Commerce.
Claudia Linn, the Chair of the Irwindale Chamber of Commerce, advised that they would be searching for a replacement CEO.
There being no additional speakers, Mayor Ortiz closed the public hearing at 6:54 p.m.
Ordinance No. 770, entitled:
"AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE ADOPTING THE BUDGET FOR FISCAL YEAR 2023-
2024," was passed, approved, and adopted, reading by title only and waiving further reading thereof, on the motion of Mayor Pro Tern
CITY COUNCIL MINUTES
REGULAR MEETING
CONSENT CALENDAR
MOTION
ITEM NO. 2
MINUTES
ITEM NO. 3
WARRANTS/
DEMANDS I PAYROLL
ITEM NO. 4
IRWINDALE CHAMBER
OF COMMERCE
SERVICES
ITEM NO. 5
ACCEPTING AND
APPROVING THE
APPROPRIATION OF
DONATED FUNDS
FROM THE
IRWINDALE
COMMUNITY
FOUNDATION
RESOLUTION NO.
2023-37-3415
ADOPTED
ITEM NO. 6
AWARD AND
RENEW DEBTBOOK
CONTRACT FOR
ACCESS TO
APPLICATION,
JUNE 28, 2023
PAGE3
Ambriz, seconded by Councilmember Breceda, and unanimously approved.
A motion was made by Mayor Pro Tern Ambriz, seconded by Councilmember Burrola, to approve the Consent Calendar. The motion was unanimously approved; Councilmember Breceda and Garcia abstaining on Item No. 12.
MINUTES
The following minutes were approved:
A) Special meeting held June 5, 2023
WARRANTS/DEMANDS/PAYROLL
The warrants were approved.
IRWINDALE CHAMBER OF COMMERCE SERVICES
The services agreement between the City of Irwindale and the Irwindale Chamber of Commerce beginning July 1, 2023, and expiring on June 30, 2024, was approved, and the City Manager was authorized to execute same.
ACCEPTING AND APPROVING THE APPROPRIATION OF
DONATED FUNDS FROM THE IRWINDALE COMMUNITY
FOUNDATION
Resolution No. 2023-37-3415, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE ACCEPTING AND APPROVING THE
APPROPRIATION OF DONATED FUNDS FROM THE IRWINDALE
COMMUNITY FOR FISCAL YEAR 2023-2024," was adopted.
AWARD AND RENEW DEBTBOOK CONTRACT FOR ACCESS TO
APPLICATION, IMPLEMENTATION, AND SUPPORT SERVICES
Pursuant to Irwindale Municipal Code Section 3.44.0SO(c), formal biding procedure was waived and the agreement with Fifth Asset, Inc. d/b/a Debtbook was approved for renewal access to the Application
CITY COUNCIL MINUTES
REGULAR MEETING
IMPLEMENTATION,
AND SUPPORT
SERVICES
ITEM NO. 7
PROPOSED END-OFYEAR CLOSURE OF
CITY FACILITIES FOR
2023
ITEM NO. 8
CANCELLATION OF
AUGUST 9, 2023,
NOVEMBER 22, 2023,
AND DECEMBER 27,
2023, CITY COUNCIL
MEETINGS
RESOLUTION NO.
2023-52-3430
ADOPTED
ITEM NO. 9
APPROVAL OF
RESOLUTIONS
RELATING TO
COMPENSATION FOR
CITY EMPLOYEES AND
APPROVAL OF NEW
JOB CLASSIFICATION
AND ASSOCIATED
JOB SPECIFICATION
RESOLUTION NO.
2023-44-3422
ADOPTED
RESOLUTION NO.
2023-45-3423
ADOPTED
JUNE 28, 2023
PAGE4
Services, which includes debt and lease management software, onboarding process and services, implementation, and support services, and the City Manager was authorized to execute the same.
PROPOSED END-OF-YEAR CLOSURE OF CITY FACILITIES FOR
2023
The closure of some City facilities was approved during the period of Monday, December 25, 2023, through and including Sunday, January 7, 2024, was approved, and the City Manager was authorized to implement said closure.
CANCELLATION OF AUGUST 9, 2023, NOVEMBER 22, 2023, AND
DECEMBER 27, 2023, CITY COUNCIL MEETINGS
Resolution No. 2023-52-3430, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE, CALIFORNIA, CANCELING REGULAR MEETINGS
OF THE CITY COUNCIL SCHEDULED FOR AUGUST 9, 2023,
NOVEMBER 22, 2023, AND DECEMBER 27, 2023," was adopted.
APPROVAL OF RESOLUTIONS RELATING TO COMPENSATION
FOR CITY EMPLOYEES AND APPROVAL OF NEW JOB
CLASSIFICATION AND ASSOCIATED JOB SPECIFICATION
Resolution No. 2023-44-3422, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING A NEW JOB CLASSIFICATION AND
ASSOCIATED JOB SPECIFICATION," was adopted, and
Resolution No. 2023-45-3423, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE REPEALING AND REPLACING RESOLUTION NO.
2023-30-3408, AND ESTABLISHING THE NUMBER OF
CITY COUNCIL MINUTES
REGULAR MEETING
ITEM NO. 10
APPROVE A FEE
WAIVER FOR
IRWINDALE SISTER
CITY
RESOLUTION NO.
2023-53-3431
ADOPTED
ITEM NO. 11
RETROACTIVELY
APPROVE A FEE
WAIVER FOR
IRWINDALE LIONS
CLUB
RESOLUTION NO.
2023-54-3432
ADOPTED
ITEM NO. 12
AWARD OF
CONTRACTS FOR
CONSTRUCTION AND
CONSTRUCTION I
PROJECT
MANAGEMENT,
INSPECTION, AND
CONSTRUCTION
SURVEYING
SERVICES FOR THE
IRWINDALE PARK
IMPROVEMENTS
PROJECT PHASES IV
ANDV
JUNE 28, 2023
PAGE5
POSITIONS, SCHEDULE OF CLASSES, AND COMPENSATION
FOR CITY EMPLOYEES," were adopted.
APPROVE A FEE WAIVER FOR IRWINDALE SISTER CITY
Resolution No. 2023-53-3431, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE, CALIFORNIA, APPROVING A FEE WAIVER FOR
IRWINDALE SISTER CITY, A 501 (C)(3) NONPROFIT
ORGANIZATION, WAIVING CITY FACILITY RENTAL FEES," was
adopted.
RETROACTIVELY APPROVE A FEE WAIVER FOR IRWINDALE
LIONS CLUB
Resolution No. 2023-54-3432, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE, CALIFORNIA, RETROACTIVELY APPROVING A FEE
WAIVER FOR IRWINDALE LIONS CLUB, A 501(C)(3) NONPROFIT
ORGANIZATION, WAIVING CITY FACILITY RENTAL FEES FOR
MONTHLY MEETINGS BEGINNING MAY 2023 THROUGH AND
INCLUDING DECEMBER 2023," was adopted.
AWARD OF CONTRACTS FOR CONSTRUCTION AND
CONSTRUCTION I PROJECT MANAGEMENT, INSPECTION, AND
CONSTRUCTION SURVEYING SERVICES FOR THE IRWINDALE
PARK IMPROVEMENTS PROJECT PHASES IV AND V; P-1011
1) The Assistant City Manager was authorized to enter into an agreement with Simgel Co., Inc. in the amount of $4,720,000.00 for the Irwindale Park Improvements Project Phases IV and V; 2) a 20% project contingency in the amount of $944,000.00 was approved to cover any unforeseeable conditions that may arise during construction; 3) the Assistant City Manager was authorized to enter into an agreement with Z&K Consultants in the amount of $242,405.00 for Construction I Project Management, Inspection, and Construction Surveying Services; 4) a 15% contingency for consultant services in the amount of $36,361.00 was approved to cover any unforeseeable conditions that may arise during construction, and 5)
CITY COUNCIL MINUTES
REGULAR MEETING
RESOLUTION NO.
2023-57 -3435
ADOPTED
ITEM NO. 13
ADOPTION OF
RESOLUTIONS TO
FILE APPLICATIONS
FOR THE LAND AND
WATER
CONSERVATION
FUND GRANT
RESOLUTION NO.
2023-55-3433
ADOPTED
RESOLUTION NO.
2023-56-3434
ADOPTED
Resolution No. 2023-57-3435, entitled
JUNE 28, 2023
PAGE6
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING THE TRANSFER OF CAPITAL
IMPROVEMENT FUNDS, AND APPROPRIATING $2,650,000
FROM THE GENERAL FUND RESERVES FOR THE IRWINDALE
PARK IMPROVEMENTS PROJECT PHASE IV & V; P-1011," was
adopted.
ADOPTION OF RESOLUTION NOS. 2023-55-3433 AND 2023-56-
3434 TO FILE APPLICATIONS FOR THE LAND AND WATER
CONSERVATION FUND GRANT
Resolution No. 2023-55-3433, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING THE APPLICATION FOR THE LAND
AND WATER CONSERVATION FUND FOR THE JARDIN DE ROCA
PARK IMPROVEMENT PROJECT," and
Resolution No. 2023-56-3434, entitled:
"A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING THE APPLICATION FOR THE LAND
AND WATER CONSERVATION FUND FOR THE SWIMMING POOL
IMPROVEMENT PROJECT PHASE II," were adopted.
END OF CONSENT CALENDAR
SPONTANEOUS
COMMUNICATIONS
MAYOR PRO TEM
AMBRIZ
ERIC ORTIZ
BATTALION CHIEF
DARREN WALKER
Mayor Pro Tern Ambriz expressed his appreciation of Irwindale Chamber of Commerce CEO Nicole Shahanian's hard work and requested that she be recognized at the next Council meeting.
Eric Ortiz, with the Healing and Justice Center, provided information regarding the work that his organization provides and requested a letter be prepared to the County Board of Supervisors to investigate and stop discriminatory practices of internet providers.
Battalion Chief Darren Walker provided information regarding firework safety.
CITY COUNCIL MINUTES
REGULAR MEETING
ANNE AMBRIZ
NEW BUSINESS
ITEM NO. 14
VALLEY COUNTY
WATER DISTRICT
UPDATE - NORA I
FRAIJO
CITY MANAGER
MIRANDA
JOSE MARTINEZ
MAYOR PRO TEM
AMBRIZ
CLAUDIA LINN
ITEM NO. 15
LINKAGE FEE I
USER FEE UPDATE
DIRECTOR SIMPSON
JAMES EDISON
COUNCILMEMBER
BURROLA
JUNE 28, 2023
PAGE 7
Anne Ambriz submitted an emailed statement requesting that Melissa Marez and Delfina Osterheim in the Recreation Department be recognized for purchasing lunch for her and for providing popcorn to the rest of the individuals in line while they waited for tickets to the Tina Turner musical.
VALLEY COUNTY WATER DISTRICT UPDATE - NORA I FRAIJO
City Manager Miranda indicated that residents living along Nora I Fraijo have previously reported discolored water at their residences.
As such, Mr. Jose Martinez, General Manager of the Valley County Water District, was in attendance to provide information regarding the incidents as well as insight on plans to mitigate the concern.
Mr. Jose Martinez made his presentation. He noted that some type of disturbance seems to have occurred in the water distribution system that has broken up mineral products that have built up in the pipeline.
He advised that, though the District has moved away from flushing water pipelines with water from hydrants due to the drought, the District will flush the area in concern to mitigate discolored water. He added that the District tends to alert customers regarding upcoming pipeline flushings via social media alerts.
Mayor Pro Tern Ambriz requested that the information be relayed to residents.
Responding to a question by Claudia Linn, Mr. Martinez advised that the flushings will occur according to the District schedule.
LINKAGE FEE I USER FEE UPDATE - PRESENTATION BY
WILDAN
Director Simpson presented the staff report Mr. James Edison with Wildan, which is the firm that prepared the study.
Mr. James Edison presented information on development impact fees, affordable housing impact fees, and commercial linkage fees, as well as how these are calculated.
Council member Burrola excused himself from the meeting and exited the Council Chambers at 7:33 p.m.
CITY COUNCIL MINUTES
REGULAR MEETING
MAYOR ORTIZ
DIRECTOR SIMPSON
MAYOR PRO TEM
AMBRIZ
MAYOR ORTIZ
ITEM NO. 16
MARIACHI FEST
CONCERT SERIES
DAY
DIRECTOR
RODRIGUEZ
COUNCILMEMBER
BRECEDA
MAYOR PRO TEM
AMBRIZ
MAYOR ORTIZ
LINDA MAREZ
MAYOR ORTIZ
MAYOR PRO TEM
AMBRIZ
MOTION
JUNE 28, 2023
PAGES
Responding to a question by Mayor Ortiz, Mr. Edison advised that his firm has prepared linkage fees for cities such as Santa Monica, Los Angeles, and Pomona.
Director Simpson indicated that, should the Council wish to proceed, the next step would be to prepare an ordinance to establish a linkage fee policy.
Mayor Pro Tern Ambriz stated that the topic needs to be discussed more thoroughly before taking action.
Mayor Ortiz concurred with Mayor Pro Tern Ambriz.
MARIACHIFEST CONCERT SERIES DAY
Director Rodriguez presented the staff report.
Councilmember Breceda agreed with the recommendation of the Parks & Recreation Commission to change the days of the concerts from Fridays to Thursdays.
Mayor Pro Tern Ambriz concurred.
Responding to a question by Mayor Ortiz, Director Rodriguez indicated that the band lineup for the concerts can include a Latin band if the Council wishes.
Linda Marez spoke very highly of the MariachiFest concerts, though she requested that the youth mariachi group not be used, or be used sparingly, since they are not on the same level as the adult mariachi band.
Mayor Ortiz suggested that, since a total of five concerts were funded, and since there are only four Thursdays in the upcoming month of September, that a concert be scheduled for the first Friday, followed by four concerts on the subsequent Thursdays.
Mayor Pro Tern Ambriz spoke in favor of having the young mariachis perform since this is how they could improve.
A motion was made by Councilmember Breceda, seconded by Mayor Pro Tern Ambriz, to approve the recommendation from the Parks & Recreation Commission to change the day of MariachiFest Concert series from Fridays to Thursdays during the month of September. The motion was unanimously approved; Councilmember Burrola absent.
CITY COUNCIL MINUTES
REGULAR MEETING
CITY MANAGER'S
REPORT
CITY MANAGER
MIRANDA
MAYOR PRO TEM
AMBRIZ
PAT GONZALES
REQUESTS BY
COUNCILMEMBERS
FOR FUTURE AGENDA
ITEMS
REQUEST BY
MAYOR ORTIZ
REGARDING
BUSINESS
OPERATIONS AT
15601 CYPRESS ST.
DIRECTOR SIMPSON
CITY ATTORNEY
GUERRA
City Manager Miranda reported the following:
JUNE 28, 2023
PAGE9
1) Foothill Transit is currently offering % price fair passes. Additional information can be found at its website.
2) The City Council and Planning Commission will hold a joint meting on July 19 to discuss changes to the zoning code. Flyers were sent to all residents with additional details on June 19. 3) He also provided details on upcoming programs and activities for the Library, Recreation, and Senior Center departments, and informed the Council on Public Works Services activities. 4) Street parking is prohibited on street-sweeping days. 5) Chief Hofford also provided updates on the Police Department's arrangements for the 4th of July celebrations. He stated that he anticipates about 18-20 officers will be patrolling the community.
Mayor Pro Tern Ambriz asked Chief Hofford about the Police Department's drone operator, to which Chief Hofford advised that he has one drone operator but would like to train another. The drone would be deployed with three Police representatives.
Responding to a question by Pat Gonzales, Chief Hofford advised that the Police Department would be enforcing parking restrictions in red zones.
REQUEST BY MAYOR ORTIZ REGARDING BUSINESS
OPERATIONS AT 15601 CYPRESS STREET (Seaboard Envelope
Company)
Director Simpson introduced the item.
City Attorney Guerra noted that this matter was being presented strictly as an informational item.
CITY COUNCIL MINUTES
REGULAR MEETING
DIRECTOR SIMPSON
COUNCILMEMBER
BRECEDA
MAYOR ORTIZ
MAYOR PRO TEM
AMBRIZ
COUNCILMEMBER
BRECEDA
ADJOURNMENT
JUNE 28, 2023
PAGE10
Director Simpson provided background information on the subject site and stated that the location's Site Plan and Design Review requires for the site to be free and clear of debris and makes provisions regarding inoperable vehicles and outdoor storage. The Council also added landscaping conditions. The businesses currently operating at the site, which do not include Seaboard Envelope, are developing a landscaping plan that complies with city ordinances. Other code enforcement issues have come up; the companies have addressed some and are working on others. She also noted that neither the Site Plan and Design Review nor the Development Agreement contain any noise conditions, and that the companies merely need to comply with existing noise ordinances.
Councilmember Breceda reported that he has heard complaints from residents regarding the operations taking place at the site in the middle of the night. He added that some truck drivers are able to peer over the walls of neighborhood residences and that workers make too much noise at night, to which Director Simpson indicated that staff attempts to gain voluntary compliance from the businesses.
Mayor Ortiz asked about the businesses' hours of operation, to which Director Simpson indicated that they are permitted to operate 24 hours per day, 7 days per week, since there are no restrictions on their hours of operation. She added that new businesses operating at the site would operate under the same criteria and stipulations found in the Disposition and Development Agreement.
Mayor Ortiz asked about parking at the facility, to which Director Simpson indicated that businesses must provide parking site plans at the time of application for a business license and an occupancy permit, and that parking capacity is calculated at that time.
Mayor Ortiz reported that the number of truck trailers parking in front and to the side of the facility probably exceeds permissible amounts, to which Director Simpson advised that Code Enforcement staff is addressing the concern with the business owners.
Mayor Pro Tern Ambriz reported a business with overgrown weeds near the Arrow Highway I Vincent intersection.
Councilmember Breceda reported inoperable vehicles at an adjacent business.
There being no further business to conduct, the meeting was adjourned at 8:08 p.m.
Laura M. Nieto, MMC
Chief Deputy City Clerk
IRWINDALE CITY COUNCIL CHAMBERS
5050 N. IRWINDALE AVENUE
IRWINDALE, CALIFORNIA 91706
CC Item 1C
HA Item 15C JULY 12, 2023
WEDNESDAY
5:45 P.M.
The Irwindale CITY COUNCIL and HOUSING AUTHORITY met in special joint session at the above time and place.
ROLL CALL: Present: Council I Board members Mark A. Breceda, Larry G. Burrola, Mayor Pro Tern Albert F. Ambriz
Absent: Council I Board member Manuel R. Garcia;
Mayor I Chair H. Manuel Ortiz
Also Present: Julian A. Miranda, City Manager I Executive Director; Adrian Guerra, City Attorney I General Counsel; and Armando Hegdahl, Management Analyst
AB 2449 DISCLOSURES None.
SPONTANEOUS
COMMUNICATIONS
RECESS TO
CLOSED SESSION
None.
At 6:03 p.m., the City Council met in Closed Session to discuss the following:
Conference with Real Property Negotiator
Pursuant to California Government Code Section 54956.8
A) Property: 14905 Los Angeles Street, Irwindale CA
Agency Negotiator: Julian Miranda, City Manager
Negotiating Parties: Marianna Diaz
Under Negotiation: Price and terms of payment
Note: This is a Housing Authority Item
ACTION: Update provided, discussed; direction provided. No reportable action.
B) Property: 16154 Arrow Highway (APNS 8417-029-024 and 025) Agency Negotiator: Marilyn Simpson, Community Development Director
Negotiating Parties: Rudolfo A. Domingues Trustee
Under Negotiation: Price and terms of payment
ACTION: Due to conflicts of interest I lack of quorum, this item was not discussed
CITY COUNCIL AND HOUSING AUTHORITY MINUTES
SPECIAL MEETING
JULY 12, 2023
PAGE2
RECONVENE IN
OPEN SESSION
ADJOURNMENT
Conference with Legal Counsel - Existing Litigation
Pursuant to California Government Code Section 54956.9
Name of Case: Five Points, LP vs. City of Irwindale
Case Number: 22STCV01394
ACTION: Due to conflicts of interest/ lack ·of quorum, this item was not discussed
At 6:30 p.m., the City Council reconvened in Open Session.
There being no further business to conduct, the meeting was adjourned at 6:31 p.m.
Laura M. Nieto, MMC
Chief Deputy City Clerk
I ~c Item 10 I
IRWINDALE CITY COUNCIL CHAMBERS
5050 N. IRWINDALE AVENUE '------------'
IRWINDALE, CALIFORNIA 91706
JULY 12, 2023
WEDNESDAY
6:35 P.M.
The Irwindale CITY COUNCIL met in regular session at the above time and place.
ROLL CALL:
PLEDGE OF
ALLEGIANCE
Present: Councilmembers Mark A. Breceda, Larry G. Burrola; Mayor Pro Tern Albert F. Ambriz;
Absent: Councilmember Manuel R. Garcia; Mayor H. Manuel Ortiz Also Present: Julian A. Miranda, City Manager; Adrian Guerra, City Attorney; Christopher Hofford, Chief of Police; Theresa Olivares, Assistant City Manager; Kambiz Borhani, Director of Finance I City Treasurer; Marilyn Simpson, Community Development Director; Eddie Chan, Director of Engineering I Building Official; Mary Hull, Human Resources Manager, and Laura Nieto, Chief Deputy City Clerk
Pledge Leader Ed Quinones not in attendance.
AB 2449 DISCLOSURES None.
CHANGES TO THE
AGENDA
CITY MANAGER
MIRANDA
COUNCILMEMBER
TRAVEL REPORTS
COUNCILMEMBER
COMMENTS
COUNCILMEMBER
BURROLA
City Manager Miranda advised that Item No. 6 on the agenda will not be addressed tonight and will be carried over to a future meeting. He also noted revisions to Ordinance No. 771 included in Item No. 7.
None.
Councilmember Burrola thanked all staff involved in the Red, White, and You BBQ and requested that City Manager Miranda speak on the difficulties experienced during the 4th of July Fireworks Show, to which City Manager Miranda advised that he would provide a brief report during the City Manager's Report portion of the agenda, and that Chief Hofford would provide details regarding the Police Department's activities that day.
Councilrnember Burrola also requested that Code Enforcement staff follow-up with the property owner of the Carl's Jr. property on Arrow Highway due to the overgrown vegetation at the site.
CITY COUNCIL MINUTES JULY 12, 2023
REGULAR MEETING PAGE 2
COUNCILMEMBER Councilmember Breceda requested that Code Enforcement staff also BRECEDA follow-up with the property owner of the Absolute Security International building at the corner of Arrow Highway and Irwindale Avenue due to overgrown vegetation at the site.
INTRODUCTION OF
NEW EMPLOYEES I
PROMOTIONS
INTRODUCTION
IRWINDALE POLICE
DEPARTMENT CSO
JESSICA ORTIZ
PROCLAMATIONS I
PRESENTATIONS I
COMMENDATIONS
INTRODUCTION OF IRWINDALE POLICE DEPARTMENT CSO
JESSICA ORTIZ
The introduction was made.
IRWINDALE CHAMBER IRWINDALE CHAMBER OF COMMERCE BUSINESS OF THE
OF COMMERCE MONTH-KEARNY REAL ESTATE
BUSINESS OF THE
MONTH - KEARNY The presentation was made.
REAL ESTATE
IRWINDALE CHAMBER IRWINDALE CHAMBER OF COMMERCE - OUTGOING
OF COMMERCE - PRESIDENT I CEO NICOLE SHAHENIAN
OUTGOING PRESIDENT
I CEO NICOLE The presentation was made.
SHAHENIAN
RECOGNITION OF RECOGNITION OF WEST COVINA NATIONAL LITTLE LEAGUE
WEST COVINA PARTICIPANTS
NATIONAL LITTLE
LEAGUE PARTICIPANTS The recognition was made.
RECESS
RECONVENE
CONSENT CALENDAR
MOTION
ITEM NO. 1
MINUTES
The Council recessed for a short break at 6:53 p.m.
The Council reconvened in Open Session at 7:00 p.m.
A motion was made by Councilmember Breceda, seconded by Councilmember Burrola, to approve the Consent Calendar. The motion was unanimously approved; Councilmember Garcia and Mayor Ortiz absent.
MINUTES
None for approval
CITY COUNCIL MINUTES
REGULAR MEETING
ITEM NO. 2
WARRANTS/
DEMANDS/
PAYROLL
ITEM NO. 3
REJECTION OF CLAIM:
KYLE TAYLOR VS.
CITY OF IRWINDALE
WARRANTS/DEMANDS/PAYROLL
The warrants I demands I payroll were approved.
JULY 12, 2023
PAGE 3
REJECTION OF CLAIM: KYLE TAYLOR VS. CITY OF IRWINDALE
The claim of Kyle Taylor vs. City of Irwindale was rejected and staff was directed to send a letter of rejection.
END OF CONSENT CALENDAR
SPONTANEOUS
COMMUNICATIONS
DENA ZEPEDA
KATHY NAVARRO
HECTOR ROJERO
ESTHER TAPIA
LINDA MAREZ
KHALALAH TODD
NEW BUSINESS
Dena Zepeda asked about Irwindale starting its own little league, requested batting cages in the park, stated her opinion that vendors were unable to make a profit at the Red, White, and You BBQ, and stated that more non-residents than residents attended the event.
Kathy Navarro of Project 2911 spoke on her organization's fund raising and charity work.
Hector Rojero, also of Project 2911, provided additional information on the organization's fundraising and charity work.
Esther Tapia stated that she saw more residents at the Red, White, and You BBQ than at the 4th of July Fireworks Show. She spoke very highly of the BBQ and thanked city staff for organizing the event.
Linda Marez agreed that the Red, White, and You BBQ brought out residents and complimented staff for including fun events such as pie eating contests, chili cookoffs, and other activities. She stated that the problems during the fireworks show was nobody's fault and that these types of things happen.
Khalalah Todd, owner of Magic Happens Market, spoke with fondness of her memories of past 4th of July activities and stated that this year's event had something for people of all ages. She expressed her hope in partnering with the City for future events.
ITEM NO. 4 VERBAL UPDATE - VETERANS MONUMENT PROJECT
VERBAL UPDATE -
VETERANS MONUMENT
PROJECT
CITY COUNCIL MINUTES
REGULAR MEETING
ASSISTANT CITY
MANAGER OLIVARES
DISCUSSION HELD
COUNCILMEMBER
BRECEDA
SUZANNE GOMEZ
JULY 12, 2023
PAGE4
Assistant City Manager Olivares presented the verbal update and made a PowerPoint presentation, wherein she demonstrated the project's conceptual plan and discussed the project parameters, including the flag display design, flagpole height, and improvements to lighting and landscaping. She advised that, if the Council is amenable, staff could move forward with the concept and can discuss lighting and placing of palm trees, after which a Request for Proposal could be drafted and circulated. Staff's goal is to complete the project by November 11.
Discussion was held regarding the proposed expansion of the existing concrete pad to accommodate the flagpoles, new hedging, and landscaping.
Councilmember Breceda requested that spotlights be included to illuminate the queen palms that are being proposed for installation, to which Assistant City Manager Olivares advised that staff could work with the architect to look into illuminating the palm trees.
Suzanne Gomez requested that at least one bench be included so that visitors could sit while contemplating the monument, and that a shade structure be included.
COUNCIL CONSENSUS Council consensus was reached to continue moving forward with the project, incorporating the comments made by the Councilmembers.
COUNCILMEMBER
BURROLA
ITEM NO. 5
LEGISLATIVE UPDATE
ASSISTANT CITY
MANAGER OLIVARES
PUBLIC HEARINGS
ITEM NO. 6
PUBLIC HEARING
FOR IRWINDALE
BUSINESS CENTER
SEWER AND STREET
LIGHTING
MAINTENANCE
Responding to a question by Councilmember Burrola, Assistant City Manager Olivares advised that the Request for Proposal would include staff's desired completion date for the project.
LEGISLATIVE UPDATE
Assistant City Manager Olivares presented the verbal update, wherein she highlighted the fact that over 2,600 new bills have been introduced this year, many of which relate to housing, homelessness, behavioral health, revenue and taxation, transportation, and the environment. She advised that the City supports the bill for funding for the Gold Line Foothill Extension project, but opposes Initiative 21- 0042A 1, SB 4 (unless amended), and SB 423.
PUBLIC HEARING FOR IRWINDALE BUSINESS CENTER SEWER
AND STREET LIGHTING MAINTENANCE ASSESSMENT
DISTRICTS
This item was not discussed and will be placed on a future agenda.
CITY COUNCIL MINUTES
REGULAR MEETING
ASSESSMENT
DISTRICTS
ITEM NO. 7
DEVELOPMENT
AGREEMENT FOR A
DIGITAL DISPLAY
BILLBOARD
PLANNING
TECHNICIAN ROMERO
CITY ATTORNEY
GUERRA
ANDY GOODMAN
OPEN
PUBLIC HEARING
CLOSE
PUBLIC HEARING
COUNCILMEMBER
BURROLA
ORDINANCE NO. 771
INTRODUCED FOR
FIRST READING
JULY 12, 2023
PAGE5
THE APPLICANT IS REQUESTING A DEVELOPMENT
AGREEMENT FOR THE CONVERSION OF AN EXISTING STATIC
BILLBOARD INTO A DIGITAL DISPLAY BILLBOARD LOCATED AT
THE INTERSECTION OF THE 1-605 (NORTHBOUND) AND 1-210
(EASTBOUND) FREEWAYS; (APN: 8533-009-014)
Planning Technician Martin Romero presented the staff report.
City Attorney Guerra read the revisions to the ordinance into the record.
Andy Goodman of Regency Outdoor Advertising introduced himself and stated that he was available to answer any questions that the Council may have.
At 7:42 p.m., Mayor Pro Tern Ambriz opened the public hearing.
There being no speakers, Mayor Pro Tern Ambriz closed the public hearing at 7:43 p.m.
Councilmember Burrola asked about distancing requirements between billboards, to which Mr. Goodman indicated that, per regulations, two static billboards could be placed 500 feet apart; though digital billboards must be placed 1000 feet apart. He also provided the locations of billboards surrounding Irwindale.
Ordinance No. 771, entitled:
"AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING DEVELOPMENT AGREEMENT NO. 01-
2022 BETWEEN CITY OF IRWINDALE AND KBS HOLDCO LLC,
DBA REGENCY OUTDOOR ADVERTISING, TO ALLOW FOR THE
DIGITAL CONVERSION OF AN EXISTING STATIC BILLBOARD
LOCATED AT THE INTERSECTION OF THE 1-605
(NORTHBOUND) AND THE 1-210 (EASTBOUND) FREEWAYS
(APN: 8533-009-014) IN THE M-2 (HEAVY MANUFACTURING)
ZONE SUBJECT TO THE CONDITIONS AS SET FORTH HEREIN
AND MAKING FINDINGS IN SUPPORT THEREOF; AND FINDING
THE PROJECT EXEMPT FROM THE PROVISIONS OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT," was introduced
for first reading, reading by title only and waiving further reading thereof, including the revision that City Attorney Guerra read, on the motion of Councilmember Burrola, seconded by Councilmember Breceda, and unanimously approved; Councilmember Garcia and Mayor Ortiz absent.
CITY COUNCIL MINUTES
REGULAR MEETING
CITY MANAGER'S
REPORT
CITY MANAGER
MIRANDA
MAYOR PRO TEM
AMBRIZ
COUNCILMEMBER
BURROLA
CITY MANAGER
MIRANDA
MAYOR PRO TEM
AMBRIZ
COUNCILMEMBER
BRECEDA
City Manager Miranda reported the following:
JULY 12, 2023
PAGE6
1) The Irwindale Educational Foundation will hold a Casino Night fundraiser at the Irwindale Brew yard on July 28.
2) A Blood Drive will be hosted in front of City Hall on August 8. 3) He also discussed upcoming events and activities for the Aquatics, Community Development, Recreation, and Senior Center Departments.
4) A joint City Council I Planning Commission meeting will be held on July 19 to discuss zoning code updates.
5) July is "Parks Make Life Better" month.
6) He also recognized Garrett Rivelli, who has been interning over the summer and will leave the City tomorrow.
Mayor Pro Tern Ambriz presented a Certificate of Recognition to Garrett Rivelli in recognition of his contributions to the City during his tenure as Intern.
Responding to a question by Councilmember Burrola, Director Rodriguez advised that interested individuals may purchase an additional waste bin from Athens. She also noted that, beginning January 1, 2024, households will be fined if they do not separate their waste properly. Staff will meet with Athens Services representatives to see about potentially providing a 4th waste bin free of charge to those residents that request one.
Councilmember Burrola requested that a second postcard be sent to residents to determine who needs a 4th waste bin.
City Manager Miranda spoke on the difficulties experienced during the 4th of July Fireworks show as well as their causes. He praised Director Rodriguez and Recreation Manager Zepeda for working quickly to mitigate the problems and for keeping him and the Council members informed and stated that staff will work to prevent these issues from reoccurring at future shows.
Mayor Pro Tern Ambriz stated that, although many were disappointed by the fireworks show, these types of incidents occur. He also commended Director Rodriguez and Manager Zepeda for their quick work.
Councilmember Breceda thanked City Manager Miranda for keeping him informed of the occurrences and stated that, although some were blaming staff for the incidents, unforeseen situations can and do occur.
CITY COUNCIL MINUTES
REGULAR MEETING
COUNCILMEMBER
BURROLA
CHIEF HOFFORD
COUNCILMEMBER
BURROLA
CITY MANAGER
MIRANDA
COUNCILMEMBER
BURROLA
REQUESTS BY
COUNCILMEMBERS
FOR FUTURE AGENDA
ITEMS
ADJOURNMENT
JULY 12, 2023
PAGE 7
Councilmember Burrola thanked City Manager Miranda and all staff involved in mitigating the issues that caused the delay in the fireworks show.
Chief Hofford briefly discussed and provided statistics on the Police Department's efforts to curb use of illegal fireworks during the 4th of July, including the use of a drone.
Responding to several questions by Councilmember Burrola, Chief Hofford advised that: 1) some 911 calls were routed to the Fire Department for their aid, 2) drones could be dispatched to locations where illegal fireworks have been reported and remain there until a ground unit arrives, and 3) the late-night hour that calls with reports of illegal fireworks usage were being made to the Police Department.
City Manager Miranda praised Chief Hofford and the Police Department for their hard work in deterring the use of illegal fireworks.
As requested by Councilmember Burrola, Director Rodriguez discussed staff's efforts in clearing dry vegetation and watering the housing-owned property to reduce the likelihood of fires caused by falling fireworks. She noted that the Fire Marshal was unable to determine whether the fire that started at the privately-owned portion of the pit was caused by a firework used at the show or by illegal fireworks lit by individuals close by.
None.
There being no further business to conduct, the meeting was adjourned at 8: 18 p.m.
Laura M. Nieto, MMC
Chief Deputy City Clerk
Accounts Payable .2
Checks by Date - Summary by Check Number
User: imarin
Printed: 7/20/2023 4:42 PM
IRWINDALE - -- -- - -------------
Check No Vendor No Vendor Name Check Date Check Amount
80205 FONTTOl Bazyle Fonttenaus 07/06/2023 2,000.00
80206 MADOl Mad Science of Orange County 07/06/2023 340.00 80207 NIET002 Carlos Nieto III 07/06/2023 350.00
80208 WONDER02 Wonders of Wildlife 07/06/2023 350,00
80209 AMBRIZ05 Albert Ambriz 07/06/2023 20.00
80210 AT&T06 AT&T 07/06/2023 59.86
80211 BRECED04 Mark A. Breceda 07/06/2023 1,647.77
80212 CONCEOl Concentra 07/06/2023 191.00
80213 CORNEJOD Diego Cornejo 07/06/2023 2,187.00
80214 ESPIN009 Juan Espino 07/06/2023 151.97
80215 FRAIJOOl Paula Fraijo 07/06/2023 15.00
80216 FRONTOl Frontier Communications 07/06/2023 987.34 80217 GARCIA03 Manuel Garcia 07/06/2023 969.77
80218 IRWIND21 Irwindale Hand Wash & Auto Detail 07/06/2023 1,565.47 80219 OPTUMOl OptumRx, Inc. 07/06/2023 47,323.44
80220 SCFUELS SC Fuels 07/06/2023 12,757.16
80221 SMART& Smart & Final 07/06/2023 1,301.21
80222 verizonw Verizon Wireless 07/06/2023 3,353.93
80223 VISIONOl Vision Service Plan - (CA} 07/06/2023 2,710.01 80224 ALLIAN Alliant Insurance Services, Inc. 07/13/2023 3,584.00 80225 ARTEAG02 Maria de Jesus Arteaga 07/13/2023 75.00
80226 AT&T06 AT&T 07/13/2023 3,367.81
80227 AyalaOl Leonor Ayala 07/13/2023 459.00
80228 AZUSALW Azusa Light & Water 07/13/2023 657.22
80229 BARA02 Frank Barajas 07/13/2023 300.00
80230 OROSC005 Rebecca Bardales 07/13/2023 466.34
80231 BOCAOl Geraldine Bocanegra 07/13/2023 75.00
80232 BURROL13 Enoch Burrola 07113/2023 97.35
80233 CALEOl Jeannette Caleron 07/13/2023 75.00
80234 CALIF002 California American Water 07/13/2023 1,485.65 80235 CAMPOS03 Manuel Campos 07113/2023 386.07
80236 CARDEOl Maria Cardenas 07/1312023 75.00
80237 CHARTEOl Charter Communications 07/13/2023 591.29 80238 CHEN04 Catherine Chen 07113/2023 25.00
80239 CHI COB Bernie Chico 07/13/2023 75.00
80240 CHICOJ John Chico 07/13/2023 75.00
80241 DFOl D.F. Polygraph 07/13/2023 200,00
80242 DOMIN12 Gilbert Dominguez 07/13/2023 75.00
80243 ESPINOlO Iris Espino 07/13/2023 150.52
80244 EVANS02 Gloria Evans 07/13/2023 300.00
80245 FLOREOI Karla Flores 07/13/2023 650.00
80246 FRAIJ002 John Fraijo 07/13/2023 398.94
80247 GALAVOl Susana Galaviz 07/13/2023 75.00
80248 GARCll Miriam Garcia 07/13/2023 75.00
80249 SOUTHE17 Golden State Water Company 07/13/2023 1,972.17 80250 GUEVAOl Maria Evelia Guevara 07/13/2023 75.00
80251 GUZMOl Bryan Guzman 07/13/2023 75.00
AP Checks by Date - Summary by Check Number (7 /20/2023 4:42 PM) Page I Check No Vendor No Vendor Name Check Date Check Amount
80252 JOVELOI Mandy Jovel 07/13/2023 75.00
80253 LOPE03 Amanda Lopez 07/13/2023 405.00
80254 LOPEZ25 Nicholas Lopez 07/13/2023 689.83
80255 MAREZL Linda S. Marez 07/1312023 75.00
80256 MIRAND25 Blanche V. Miranda 0711312023 390.00
80257 MUN002 Susana Ortuno Munoz 0711312023 75.00
80258 NARANOI Vaibhav Narang 0711312023 75.00
80259 NUNEZ A AlyneNunez 07/1312023 300.00
80260 PACHEO! Alvaro Pacheco 0711312023 40.00
80261 PARROI Edlin Parra 0711312023 75.00
80262 PURCHA Purchase Power 0711312023 2,030.00
80263 ROMANC Carmen M. Roman 0711312023 101.00
80264 ROME03 Natali Romero 07/13/2023 75.00
80265 RUIZ07 Veronica Ruiz 0711312023 75.00
80266 SILV02 Maria Silva 0711312023 75.00
80267 GASCOM SoCalGas 07/1312023 4,264.24
80268 SORIOI Carmina Soria 0711312023 22.00
80269 SCE02 Southern California Edison 0711312023 27,118.90 80270 SCE02 Southern California Edison 07113/2023 15,380.84 80271 SCE02 Southern California Edison 0711312023 39,801.76 80272 SCE02 Southern California Edison 07113/2023 13,578.05 80273 SCE02 Southern California Edison 0711312023 15,109.36 80274 SCE02 Southern California Edison 0711312023 24,239.19 80275 SCE02 Southern California Edison 07113/2023 18,072.33 80276 SCE02 Southern California Edison 0711312023 20,506.62 80277 SCE02 Southern California Edison 0711312023 20,042.87 80278 SREEO! Suijth Sreekkumar 07113/2023 150.00
80279 TORR04 Roxxane Torres 07113/2023 75.00
80280 TPXOI TPX Communications 0711312023 5,098.28
80281 TREJO! Rose Trejo 07/13/2023 10.00
80282 TUIAOI Venise Tuiasosopo 07113/2023 75.00
80283 VALEO! Sarah Valerio 07/13/2023 75.00
80284 VARGAS03 Jose Vargas 07/13/2023 15.00
80285 verizonw Verizon Wireless 07113/2023 2,485.92
80286 VIDAOI Michael Vidal 07113/2023 200.00
80287 WAGONER Pamela Wagoner 07113/2023 500.00
80288 WILLOl April Williams 07113/2023 180.00
80289 YOUMOl Veronica Youman 07/13/2023 75.00
80290 ALLIAN02 Alliant Insurance Services, Inc.- Irvine Mai 07113/2023 1,516.00 80291 AMERIFID American Fidelity Assurance 07/13/2023 8,693.50 80292 AMERIC34 American Fidelity Assurance Co 07113/2023 4,447.34 80293 OROSC005 Rebecca Bardales 07/13/2023 196.46
80294 BELTRA Eloise Beltran 07/13/2023 82.00
80295 BURGUAOl Rene Burguan 07113/2023 2,000.00
80296 CHAC02 Steven Chacon 07/13/2023 500.00
80297 COLD DU Cold Duck Prod. Inc. 07/13/2023 2,000.00
80298 CUDEOI Lynn Cude 07113/2023 3,000.00
80299 DOMING04 Alva Dominguez 07/13/2023 20.00
80300 FONTTOl Bazyle Fonttenaus 07/13/2023 2,500.00
80301 FRONTOl Frontier Communications 07/13/2023 324.49 80302 MADOl Mad Science of Orange County 07/13/2023 340.00 80303 OSTERHOl Delfina Osterheim 07/13/2023 55.05
80304 PURCHA Purchase Power 07/13/2023 2,030.00
80305 SPECOl Special Needs Coffee, LLC 07/13/2023 300.00 80306 TULLOI Bob Tullio 07/13/2023 500.00
80307 TULLIOOl Jim Tullio 07/13/2023 500.00
80308 CALIF056 California State Disbursement Unit 07/13/2023 604.15 AP Checks by Date - Summary by Check Number (7 /20/2023 4:42 PM) Page 2 Check No Vendor No Vendor Name Check Date Check Amount
80309 CALIF057 California State Disbursement Unit 07/13/2023 143.07 Report Total (105 checks): 335,580.54
AP Checks by Date - Summary by Check Number (7/20/2023 4:42 PM) Page3 Accounts Payable
Checks by Date - Summary by Check Number
User: imarin
Printed: 7/20/2023 4:42 PM
IRWINDALE . -- --- --- - -------------
Check No Vendor No Vendor Name Check Date Check Amount
80312 BAKEROl Baker & Taylor Books 07/26/2023 140.00
80313 BAKERIO Bakers Man Production 07/26/2023 900.00
80314 BARB02 Ray A. Barba 07/26/2023 268.29
80315 CALIF042 California Building Standards 07/26/2023 684.00 80316 Cat Spec Cat Specialities Inc 07/26/2023 64.02
80317 CDWOI CDW Goven1n1ent 07/26/2023 8,185.95
80318 CITYOF18 City of Santa Fe Springs 07/26/2023 88,064.77 80319 LOSANG33 County of Los Angeles 07/26/2023 84,336.93 80320 CRAFTOI Craftwater Engineering, Inc. 07/26/2023 5,210.00 80321 CWAOI CWAA1A,Inc 07/26/2023 40,807.20
80322 DELONG Delong Unlimited 07/26/2023 876.66
80323 DICKEROI Dickerson, McCulloch & Associates, LLC 07/26/2023 6,301.50 80324 DIVISIOI Division of the State Architect 07/26/2023 322.09 80325 BATEOI Elior Inc. 07/26/2023 4,029.30
80326 FCGOI FCG Consultants Inc. 07/26/2023 62,504.10
80327 GEO LOG Geologic Associates 07/26/2023 18,430.30
80328 HDLOI Hdl Software, LLC 07/26/2023 33.26
80329 INTELLOI Intelli-tech, Inc. 07/26/2023 1,803.26
80330 IRWIND03 Irwindale Tire Shop 07/26/2023 10.00
80331 JCLOI JCL Traffic 07/26/2023 509.53
80332 COOR YE Samir M. Khoury 07/26/2023 4,806.00
80333 KJSERVOI KJ Services Enviromental Consulting LLC 07/26/2023 1,190.00 80334 LAKESHOI Lakeshore Learning Materials,LLC 07/26/2023 3,190.90 80335 LEXI SN LexisNexis Risk Solutions 07/26/2023 151.50 80336 MARIPO Mariposa Landscapes, Inc. 07/26/2023 8,796.00 80337 MAVEOI Maverick Networks, Inc 07/26/2023 4,995.00 80338 MER CUR Mercury Fence Co., Inc. 07/26/2023 725.00 80339 MORO! Jimore Morgan 07/26/2023 2,505.50
80340 MOTOROI Motorola Solutions, Inc. 07/26/2023 595.35 80341 OFFICE03 ODP Business Solutions, LLC 07/26/2023 3,699.20 80342 PHASEII PARS 07/26/2023 1,750.00
80343 PERF03 Performance Elevator Contractors, Inc. 07/26/2023 360.00 80344 PLACED! PlaceWorks, Inc. 07/26/2023 20,030.26
80345 R&RMOI R & R Metal Fabricators, Inc. 07/26/2023 375.00 80346 RIOHONOI Rio Hondo College 07/26/2023 25.00
80347 ROSENO Rosenow Spevacek Group Inc 07/26/2023 555.00 80348 SOUTH09 Southern Computer Warehouse Inc, 07/26/2023 2,945.79 80349 SWANKOI Swank Motion Pictures, Inc. 07/26/2023 480.00 80350 PENWOR The Penworthy Company 07/26/2023 267.29
80351 THEPOI The Pin Center 07/26/2023 1,445.00
80352 V&VOI V & V Manufacturing, Inc. 07/26/2023 255.67 80353 VANCEOI Vance Corporation 07/26/2023 351,174.14
80354 WESTC005 West Coast Arborists, Inc. 07/26/2023 8,189.01 80355 HDSUPOI WHITE CAP, L.P. 07/26/2023 286.27
80356 WILLDAN Willdan Financial Services 07/26/2023 5,610.00 80357 ARCH02 ArchiveSocial, Inc. 07/26/2023 5,988.00
80358 AZBUSOI A-Z Bus Sales 07/26/2023 176.36
AP Checks by Date - Summary by Check Number (7 /20/2023 4:42 PM) Page 1 Check No Vendor No Vendor Name Check Date Check Amount
80359 MJJACA Balcon Holdings, Inc. 07/26/2023 135.00
80360 BILLST Bill's Truck Repair, Inc. 07/26/2023 175.00 80361 DUDEOI Brightly Software, Inc. 07/26/2023 4,619.00 80362 CACE California Association of 07/26/2023 60.00
80363 CALIF026 California Police Chiefs 07/26/2023 155.00 80364 CALI22 CAP IO 07/26/2023 30.00
80365 CINTAS Cintas Corporation #693 07/26/2023 300.80
80366 CITYOFll City of Azusa 07/26/2023 3,150.00
80367 COMO! COM-Net 07/26/2023 40,987.76
80368 DEMCOI Demeo, Inc. 0712612023 285.88
80369 GARVEY Garvey Equipment Co 07/26/2023 133,94
80370 HASAOI Hasa Inc. 07/26/2023 1,380.94
80371 IRWIND03 hwindale Tire Shop 07/26/2023 75.00
80372 LAND SC Landscape Warehouse III Inc. 07/26/2023 237.06 80373 MIDAS Manuel C Muratalla 07/26/2023 633.30
80374 MATA02 Francisco Mata 0712612023 4,547.81
80375 MOBI02 Mobile Citizen, LLC 07/26/2023 1,200.00
80376 MORO! Jimore Morgan 07/26/2023 320.00
80377 PITNEY06 Pitney Bowes, Inc 07/26/2023 137.25
80378 PRO PRINT Pro Printing, Inc. 07/26/2023 60.16
80379 QUINN02 Quinn Company 07/26/2023 1,911.21
80380 PACIFI13 Rene David LTD 0712612023 407.00
80381 SANGAB13 San Gabriel Valley Council 07/26/2023 17,589.59 80382 SIERRAOI Sierra Chevrolet 07/26/2023 97.43
80383 SWANKOI Swank Motion Pictures, Inc. 07/26/2023 530.00 80384 NORTHR The Northridge Group, Inc. 07/26/2023 4,420.42 80385 UNITED II United Site Services of CA Inc 07/26/2023 589.50 80386 HDSUPOI WHITE CAP, L.P. 07/26/2023 115.96
Report Total (75 checks): 838,333.41
AP Checks by Date - Summary by Check Number (7/20/2023 4:42 PM) Page 2 !ill City Council
!ill Successor Agency
!ill Housing Authority
DReclamation Authority
DJoint Powers Authority
Date: July 26, 2023
Cityef
IRWINDALE
AGENDA REPORT
To: Honorable Mayor and Members of the City Council
CC Item 3
SA Item 14
HA Item 16
Honorable Chair and Members of the Successor Agency Board Honorable Chair and Members of the Housing Authority Board From: Julian A Miranda, City Manager/Executive Director Issue: Investment Quarterly Report for Fiscal Quarter Ending June 30, 2023.
City Manager/Executive Director's Recommendation:
That the City Council, Successor Agency Board, and Housing Authority Board receive and file the Investment Quarterly Report for the fiscal quarter ending June 30, 2023.
Administrative Action:
Submitted & prepared by:
Kambiz Borhani, Finance Director I City Treasurer
(626) 430-2221
Reviewed by:
Adrian R. Guerra, City Attorney/General Counsel
Kambiz Borhani, Finance Director I City Treasurer
Approved by:
Julian A, Miranda, City Manager/Executive Director
Electronically Approved
Background and Analysis:
California Government Code Section 53646 requires that the City Treasurer submit a quarterly report of investments (Investment Report) to the City Council/Board Members for review and compliance with the City's adopted investment policy (City's Investment Policy).
The attached Investment Report summarizes the cash balances and investments as of June 30, 2023, for each agency. The City of lrwindale's balances include investments of all funds of the City and its agencies, which are pooled to maximize the interest yield. The cash balances in the general and money market accounts also include all funds of the City and its agencies, which also earn interest on the pooled cash balances. All investments comply with the City's Investment Policy.
As previously noted, all funds held by the City, Successor Agency, Housing Authority, and Reclamation Authority are pooled to maximize interest yields. The Reclamation Authority Board is not scheduled to meet again until September 13, 2023. Therefore, this same Investment Report will be included in the Reclamation Authority's Agenda for that meeting for review by the Reclamation Authority Board as well.
Fiscal Impact:
There is no fiscal impact to receive and file this report.
Attachment:
City of Irwindale Investment Report- June 30, 2023
Page2
CITY OF IRWINDALE
INVESTMENT REPORT
June 30, 2023
PAR VALUE/ CURRENT PURCHASE MATURITY MKTVALUE f INVESTMENT SECURITY DESCRIPTION ORIGINAL YIELD TO ENDING
COST MATURITY DATE DATE BALANCE RATINGS
CITY OF IRY!l)NDALE {POQLED - ALL FUNDS1 INCLUDING RECLAMATION AUTHORITY} BANK OF THE WEST GENERAL ACCOUNT $ 366,906 0.36% $ 366,906 WELLS FARGO BANK MONEY MARKET ACCOUNT $ 615,452 5.01% $ 615,452 LOCAL AGENCY INVESTMENT FUND {LAIF) $ 50,470,273 3,36% $ 49,789,446
US GOVERNMENT AGENCIES
FEDERAL HOME LN BKS CONS BO (FHLB) $ 5,000,000 0.52% 07/28/21 01/28/25 $ 4,641,527 Aaa/ AA+ FEDERAL FARM CR BKS CONS SYSTEMWIDE (FFCB) 5,000,000 0.58% 06/23/21 06/23/25 4,573,620 Aaa/ AA+ FEDERAL FARM CR BKS CONS SYSTEMWIDE (FFCB) 3,000,000 0.90% 06/15/21 06/15/26 2,684,957 Aaa/ AA+ FEDERAL HOME LN BKS CONS BD (FHLB) 5,000,000 1.00% 06/30/21 06126126 4,484,637 Aaa/ AA+ FEDERAL HOME LN BKS CONS BD (FHLB) 5,000,000 0.50% 06130/21 06/30/26 4,449,407 Aaa/ AA+ FEDERAL FARM CR BKS CONS SYSTEMWIDE (FFCB) 5,000,000 0.87% 07/28/21 07/28/26 4,459,023 Aaa/AA+ FEDERAL HOME LN BKS (FHLB) 5,000,000 0.50% 07/29121 07/29/26 4.492,364 Aaa/ AA+ FEDERAL HOME LN BKS CONS BD (FHLB) 1,000,000 3.42% 08/29/22 11/15/24 941,595 Aaa/ AA+ FEDERAL HOME LN BKS CONS BD (FHLB) 1,000,000 3.45% 08/29/22 12/27/24 940,521 Aaa/ AA+ FEDERAL HOME LN BKS CONS BD (FHLB) 1,000,000 3.28% 08/29/22 02122127 910,512 Aaa/ AA+ Sub-Total US Government Agencies: $ 36,000,000 $ 32,578,163
MUNICIPAL BONDS
CALIFORNIA STATE TAXABLE $ 1,000,000 3.35% 08/30/22 04/01/24 $ 980,491 Aa2 /AABAY AREA CALIFORNIA TOLL AUTHORITY 1,000,000 3.50% 08/30/22 04/01/25 948,658 Aa3/ AA CALIFORNIA STATE TAXABLE 1,000,000 4.30% 01/09/23 10/01/26 1,020,992 Aa2/ AA· COAST COMMUNITY COLLEGE DISTRICT CAL!FORNIJ 1,000,000 4.22% 02/09/23 08/01/26 928,606 Aa1/AA+ CALIFORNIA STATE TAXABLE 1,000,000 4.00% 04/26/23 04/01/28 949262.8 Aa2/ AAUNIVERSITY OF CALIFORNIA 1,000 000 3.90% 05/17/23 05/15/27 879,274 Aa2 /AA Sub-Total Municipal Bonds: $ 6,000,000 $ 5,707,284
CORPORA TE BONDS
WELLS FARGO & COMPANY $ 2,000,000 6.25% 10/21/22 10/21/27 $ 2,004,137 A1 /BBB+ TOYOTA MOTOR CREDIT CORPORATION 1000000 5.00% 11/10122 10/16/25 905 619 A1 /A+ $ 3,000,000 $ 2,909,756
CERTIFICATES OF DEPOSIT
BANK OF CHINA $ 245,000 3.159% 08/31122 02128124 $ 241,484 FDIC Insured JP MORGAN CHASE BANK 245,000 3.40 % 08/31/22 08/30/24 239,267 FDIC Insured APEX BANK 245,000 3.153% 08131/22 08/30/24 238,583 FDIC Insured UBS BANK USA 245,000 3.40 % 08/31!22 09/02/25 234,885 FDIC Insured AMERICAN EXPRESS NATIONAL BANK 245,000 3.35% 08131/22 09102125 234,717 FDIC Insured COMMUNITY BANK OF THE BAY 245,000 3,50% 08/31/22 08/31/27 228,478 FDIC Insured CAPITAL ONE BANK USA 245,000 3.45 % 08/31/22 08/31/27 228,119 FDIC Insured CAPITAL ONE NATIONAL ASSN VA 245,000 3.45 % 08/31/22 08/31/27 228,119 FDIC Insured ALLY BANK 245,000 3.35% 09/01/22 09/01/26 230,638 FDIC Insured SYNCHRONY BANK 245,000 3.45 % 09/02/22 09/02/27 228,101 FDIC Insured CUSTOMERS BANK 245,000 3.00% 09/06/22 09/06123 243,896 FDIC Insured MEDALLION BANK 245,000 3.25% 09/07122 09/08/25 234,069 FDIC Insured BMO HARRIS BANK 245,000 3.15% 09/09/22 03/11/24 241,332 FDIC Insured DR BANK 245,000 3.60% 09/09/22 09/09/26 232,240 FDIC Insured SAFRA NATIONAL BANK 245,000 3.05% 09/09/22 10/10/23 243,464 FDIC Insured MORGAN STANLEY BANK 245,000 3.45 % 09f09/22 09/09/27 228,085 FDIC Insured MORGAN STANLEY BANK 245,000 3.45 % 09/09/22 09/09/27 228,085 FDIC Insured TRADITIONAL CAPITAL BANK 245,000 3.30% 09/14/22 03/13/26 232,101 FDIC Insured PONCE BANK 245,000 3.35% 09/14122 09/14/27 226,940 FDIC Insured FIRST NATIONAL BANK 245,000 3.45 % 09/19/22 09/20/27 227,863 FDIC Insured FIRSTWESTERN TRUST BANK 245 000 4.55% 01/06/23 01/06/28 237 769 FDIC Insured Sub-Total Certificates of Deposit: $ 5,145,000 $ 4,908,233 Total City of Irwindale Investments (Pooled Funds): $101,597,631 $ 96,875,240 HOUSING AUTHORITY {Funds 11 & 12}
BANK OF THE WEST GENERAL ACCOUNT $ 466,008 0.36% $ 466,008 LOCAL AGENCY INVESTMENT FUND (LAIF) 5,727,040 3.36% 5,649,784 $ 6,193,048 $ 6,115,792
SUCCESSOR AGENCY {Funds 50·66)
BANK OF THE WEST MONEY MARKET ACCOUNT $ 259,876 0.36% $ 259,876 LOCAL AGENCY INVESTMENT FUND (LAIF) 5 930 290 3.36% 5 850 292 $ 6,190,166 $ 6,110,168
GRAND TOTAL OF INVESTMENTS $113,980,845 $ 109,101,200
This investment portfolio is in conformity with the City of lrwindale's Investment Policy which was approved by City Council on June 5, 2023.
The City Treasurer's cash management program and cash flow analysis Indicates that sufficient liquidity Is on hand to meet estimated future expenditures for a period of six months. The weighted average of maturity of the City's pooled investment portfolio ls1.21 years, and the weighted average yield of the City's pooled investments at cost is 2.26%. Market prices of securities are obtained directly through Bank Statements. Due to timing, Bank of the West General Account balances are pre-reconciled and yield rates are based on the prior month's account analysis statement.
Approved by ~ f3 &-d.cuu' Kambiz Borhani, Finance Director I City Treasurer CC Item 4
12JCity Council Cityo/ D Successor Agency
DHousing Authority
DReclamation Authority
DJoint Powers Authority
IRWINDALE
AGENDA REPORT
Date: July 26, 2023
To: Honorable Mayor and Members of the City Council
From: Julian A. Miranda, City Manager
Issue: Authorize City Manager to execute Contract Service Agreements with Royal Coaches Auto Body and Towing and Jan's Towing Inc., for Towing Services City Manager's Recommendation:
Adopt Resolution No. 2023-33-3411 entitled: "A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF IRWINDALE AWARDING NON-EXCLUSIVE FRANCHISES AND
AUTHORIZING THE CITY MANAGER TO EXECUTE CONTRACT SERVICE
AGREEMENTS WITH ROYAL COACHES AUTO BODY AND TOWING AND JAN'S TOWING INC., FOR TOWING SERVICES"
Administrative Action:
Submitted by:
Christopher Hofford, Chief of Police
(626) 430-2200
Prepared by:
John Fraijo, Police Captain
Reviewed by:
Adrian R. Guerra, City Attorney
Kambiz Borhani, Finance Director I City Treasurer
Approved by:
Julian A. Miranda, City Manager
01005.0010/907460.1
ELECTRON/CALLY APPROVED
ELECTRON/CALLY APPROVED
ELECTRON/CALLY APPROVED
Background and Analysis:
Towing vehicles from the roadway is part of any police department's routine or normal operation. For example, disabled vehicles must be quickly removed from the street to minimize traffic hazard. Towing is also required for DUI and other instances of traffic violations. In this regard, the Irwindale Police Department is no different than other law enforcement agencies.
Currently, two tow companies provide tow service to Irwindale and do so on a rotational basis which equally divides tow requests between the two companies. The agreement with the two existing companies was established in 2017 and expired on January 2, 2023. We have been operating on a month to month agreement with our tow service providers until the new contract is in place.
Section 608 of the City's Charter, which states that "franchises shall be granted by the City Council only in the time and manner, and for such purposes, as may be prescribed or authorized by the Constitution or by applicable laws of this State." On December 14, 2022, at the regular City Council Meeting, the Irwindale City Council approved the authorization to solicit formal bids by way of Requests for Proposals (RFP) for towing services in accordance with Section 3.44.090 of the Irwindale Municipal Code.
The formal bid process was announced and opened on December 15, 2022, and was published in the San Gabriel Valley Tribune and on the city's webpage through our City Clerk's Office. The final submission date for completed proposals was January 17, 2023 at 1 O:OOam - three companies responded to the request.
The RFP required detailed information on personnel, equipment, processes, experience, company profile, liability and the ability to meet various state· regulations and training.
Selection Process:
A professional panel was assembled to review and critique each proposal. The panel consisted of Captain John Fraijo, Finance Clerk Isabel Marin and Lieutenant Jose Vargas.
The proposals were carefully evaluated based on the needs of the city, scope of work, response time, customer service, expertise, references, and quality. The panel also evaluated each company on their experience working with other law enforcement agencies and if they have adequate equipment and personnel to provide a quality service to our residents.
A snapshot of each company below;
Company Date Miles from PD Tow Truck Class Agency Count Incorporated
Royal Coaches 1987 1.6 ABCD 8
Foothill Towing 1981 6.0 AD 2
Jan's 1994 .8 ABCD 6
Page2
Each proposer was invited to do a presentation and was personally interviewed on March 9, 2023. The panel scored the companies accordingly using a scoring system of 1 to 7 (lowest to high) in specific areas.
After careful consideration and review, Royal Coaches Auto Body and Towing and Jan's Towing Inc., scored the highest and were chosen as the most responsive to the city's needs by the professional panel. These companies excelled in the areas of equipment, service delivery, locality, and most importantly, the customer experience.
Royal Coaches Auto Body and Towing and Jan's Towing Inc., demonstrated a high regard in areas of employee training, response time, variety of fleet, and overall service to our community.
Discussion:
It is recommended that Contract Service Agreements for Tow Services be awarded to Royal Coaches Auto Body and Towing and Jan's Towing Inc., who were selected as a result of the review process. It is anticipated that the new agreement will begin August 1, 2023.
Fiscal Impact:
The Contract Service Agreements will establish a three year contract, requiring each company to pay a monthly Contract Fee of $2,250. In accordance with Vehicle Code section 12110, the fee represents the parties' best estimate of the amount necessary to reimburse the City for its actual and reasonable costs incurred in connection with the towing program.
Attachments:
Resolution No. 2023-33-3411
Contract Service Agreement - Royal Coaches Auto Body and Towing Contract Service Agreement - Jan's Towing Inc.
Exhibit A - Scope of Services
Exhibit B - Special Requirements
Exhibit C - Schedule of Compensation
Exhibit D - Schedule of Performance
01005.0010/907460.1 Page3
RESOLUTION NO. 2023-33-3411
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF IRWINDALE AWARDING NONEXCLUSIVE FRANCHISES AND AUTHORIZING THE CITY MANAGER TO EXECUTE
CONTRACT SERVICE AGREEMENTS WITH ROYAL COACHES AUTO BODY AND TOWING AND JAN'S TOWING INC., FOR TOWING SERVICES
WHEREAS, Section 3.44.090 of the Irwindale Municipal Code provides for a formal bidding process when a purchase of supplies, services and equipment with an estimated value greater than the maximum amount set by the Purchasing Resolution or more shall be made; and WHEREAS, On December 14, 2022, the City of Irwindale issued a Request For Proposals for official towing and storage service of vehicles (RFP); and WHEREAS, Three tow companies responded to the request and were interviewed by a professional panel on March 9, 2023; and
WHEREAS, The professional panel evaluated each company based on the needs of the city, scope of work, response time, customer service, expertise, references, and quality; and WHEREAS, After careful consideration and review, Royal Coaches Auto Body and Towing and Jan's Towing Inc., scored the highest and were chosen as the most responsive to the city's needs by the professional panel; and
WHEREAS, The City is authorized to enter into non-exclusive tow franchise agreements pursuant to Section 608 of the City's Charter, which states that "franchises shall be granted by the City Council only in the time and manner, and for such purposes, as may be prescribed or authorized by the Constitution or by applicable laws of this State."
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE, CALIFORNIA, RESOLVES, DETERMINES AND ORDERS AS FOLLOWS:
SECTION 1. In accordance with section 608 of the City Charter and section 3.44.090 of the Irwindale Municipal Code, the City Council hereby awards non-exclusive tow franchises for vehicle towing and storage services to Royal Coaches Auto Body and Towing and Jan's Towing Inc.
SECTION 2. The City Council hereby approves the Agreement for Contract Services by and between the City of Irwindale and Royal Coaches Auto Body and Towing, attached hereto as Exhibit "A." The City Manager is hereby authorized to execute the final agreement, subject to final approval as to form by the City Attorney.
SECTION 3. The City Council hereby approves the Agreement for Contract Services by and between the City of Irwindale and Jan's Towing Inc., attached hereto as Exhibit "B." The 01005.0010/907459.1 Resolution No. 2023-33-3433
City Manager is hereby authorized to execute the final agreement, subject to final approval as to form by the City Attorney.
SECTION 4. The Deputy City Clerk shall attest to the adoption of this resolution which shall, in turn, have immediate effect.
PASSED, APPROVED AND ADOPTED this 25th day of July, 2023.
H. Manuel Ortiz, Mayor
ATTEST:
Laura Nieto
Chief Deputy City Clerk
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES } ss.
CITY OF IRWINDALE }
I, Laura Nieto, Chief Deputy City Clerk of the City of Irwindale, do hereby certify that the foregoing Resolution No. 2023-33-3411 was duly and regularly passed and adopted by the City Council of the City of Irwindale at its regular meeting held on the 25th day of July, 2023, by the following vote:
A YES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
Resolution No. 2023-33-3411
Laura Nieto
Chief Deputy City Clerk
AGREEMENT FOR CONTRACT SERVICES
By and Between
CITY OF IRWINDALE
and
Jan's Towing Inc.
AGREEMENT FOR CONTRACT SERVICES
BY AND BETWEEN THE CITY OF IRWINDALE AND
THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and entered into this _ day of , 2023 by and between the City of Irwindale, a California municipal corporation ("City") and Jan's Towing Inc. ("Contractor"). City and Contractor are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties".
RECITALS
A. The City desires to provide its residents and businesses with the highest quality of vehicle towing and storage services when requested by the City of Irwindale Police Department ("IPD"); and
B. The City finds vehicle towing and storage services is best achieved by the granting of nonexclusive franchises to no more than two (2) vehicle towing and storage service providers since such nonexclusive franchises maximize the City's ability to regulate and oversee the quality of vehicle towing and storage services and to maintain nniform and consistent levels of services throughout the City, thus furthering the public health, safety, and well-being; and C. Pursuant to Irwindale Municipal Code ("IMC") Chapter 3 .44.090, City staff issued a Request for Proposals to identify the best qualified tow service vendors and Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 ofthis Agreement, was selected by the City to perform those services; and
D. The IPD conducts the Rotation Tow Program in the City ofirwindale, whereby each Contractor who enters into a towing services agreement with the City is placed on a rotation tow listing with the IPD ("Rotational Tow Program"); and E. This Agreement contains terms and conditions with which Contractor agrees to comply in order to participate in the Rotation Tow Program and be placed on the rotation tow listing with the IPD; and
F. Participation in the IPD Rotation Tow Program is voluntary; however, compliance with all terms and conditions of the Agreement is mandatory for all tow companies participating in the IPD Rotation Tow Program. Contractor, by agreeing to participate in the program, does not establish a contractual relationship with the IPD and is not acting as an agent for the IPD or the City when performing services under this Agreement; and G. The City is authorized to enter into this Agreement pursuant to Section 608 of the City's Charter, which states that "franchises shall be granted by the City Council only in the time and manner, and for such purposes, as may be prescribed or authorized by the Constitution or by applicable laws of this State."
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONTRACTOR
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder.
As a material inducement to the City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more firstclass firms performing similar work under similar circumstances.
1.2 Contractor's Proposal.
The Scope of Service shall include the Contractor's scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Contractor shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 Licenses, Permits, Fees and Assessments.
Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. -2-
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1.5 Familiarity with Work.
By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer.
1.6 Care of Work.
The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
- 3 - 01005.0010/907463.l
1.9 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions ohhis Agreement, the provisions of Exhibit "B" shall govern.
ARTICLE2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed NOT APPLICABLE Dollars ($N/A) (the "Contract Sum"), unless additional compensation is approved pursuant to Section 1.8.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and ( c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance.
By submitting an invoice for payment under this Agreement, Contractor is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Contractor shall not invoice City for any duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this -4-
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Agreement. Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Contractor to be paid within forty-five (45) days ofreceipt of Contractor's correct and undisputed invoice; however, Contractor acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission. Review and payment by City for any invoice provided by the Contractor shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver. Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
ARTICLE3. PERFORMANCE SCHEDULE
3 .1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, ifthe Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding three (3) - 5 - 01005.0010/907463.1
years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit "D").
ARTICLE4. COORDINATION OF WORK
4.1 Representatives and Personnel of Contractor.
The following principals of Contractor ("Principals") are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally, Contractor shall utilize only competent personnel to perform services pursuant to this Agreement. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor's staff and subcontractors, if any, assigned to perform the services required under this Agreement. Contractor shall notify City of any chariges in Contractor's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. ·
4.2 Status of Contractor.
Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Contractor, nor any of Contractor's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Contractor expressly waives any claim Contractor may have to any such rights. - 6 - 01005.0010/907463.1
4.3 Contract Officer.
The Contract Officer shall be the City's Chief of Police or such person as may be designated by the City Manager. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4 .4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
ARTICLES. INSURANCE AND INDEMNIFICATION
5 .I Insurance Coverages.
The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City:
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(a) Commercial General Liability Insurance (Occurrence Form CGOOOl or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $2,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Contractor against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement.
(c) Automotive Insurance (Form CA 0001 (Ed 1/87) including "any auto" and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than either (i) bodily injury liability limits of $100,000 per person and $300,000 per occurrence and property damage liability limits of $150,000 per occurrence or (ii) combined single limit liability of$1,000,000. Said policy shall include coverage for owned, non-owned, leased, hired cars, and any other automobile.
(d) Professional Liability. Professional liability insurance appropriate to the Contractor's profession. This coverage may be written on a "claims made" basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Contractor's services or the termination of this Agreement. During this additional 5-year period, Contractor shall annually and upon request of the City submit written evidence of this continuous coverage. ( e) Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit "B".
5 .2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Contractor's insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention.
All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing ninety (90) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance - 8 - 01005.0010/907463.1
are cancelled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5 .1 to the Contract Officer.
No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following "cancellation" notice:
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL NINETY (90)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER NAMED HEREIN.
[to be initialed]
Contractor Initials
City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Contractor performs; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or any automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or persons for which the Contractor is otherwise responsible nor shall it limit the Contractor's indemnification liabilities as provided in Section 5 .3.
In the event the Contractor subcontracts any portion of the work in compliance with Section
4.5 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to Section 5. I, and such certificates and endorsements shall be provided to City. - 9 - 01005.0010/907463.l
5 .3 Indemnification.
To the full extent permitted by law, Contractor agrees to indemnify, defend and hold harmless the City, its officers, employees and agents ("Indemnified Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable ("indemnitors"), or arising from Contractor's or indemnitors' reckless or willful misconduct, or arising from Contractor's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or conditi.on of this Agreement, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
( c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees.
Contractor shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Contractor shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Contractor in the performance of professional services hereunder. The provisions ofthis Section do not apply to claims or liabilities occurring as a result of City's sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Contractor and shall survive termination ofthis Agreement.
5 .4 Sufficiency oflnsurer.
Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating - 10 - 01005.0010/907463. l
Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City ("Risk Manager") due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the risk manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager.
ARTICLE6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Contractor shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the "books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Contractor's business, custody of the books and records may be given to City, and access shall be provided by Contractor's successor in interest. Notwithstanding the above, the Contractor shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby aclmowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the "documents and materials") prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or - 11 - 01005.0010/907463.1
assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and Contractor's guarantee and warranties shall not extend to such use, reuse or assignment. Contractor may retain copies of such documents for its own use. Contractor shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. Moreover, Contractor with respect to any documents and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for the City.
6.4 Confidentialitv and Release oflnformation.
01005.0010/907463.1
(a) All information gained or work
product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b) Contractor, its officers, employees,
agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena.
( c) If Contractor, or any officer,
employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorneys fees, caused by or incurred as a result of Contractor's conduct. ( d) Contractor shall promptly notify City
should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to - 12 -
ARTICLE7.
review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ENFORCEMENT OF AGREEMENT AND TERMINATION
7 .1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California.
7 .2 Disputes; Default.
In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default.
This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Contractor's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other - 13 - 01005.0010/907463.l
provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions ohhis Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Contractor shall file a statutory claim pursuant to Govermnent Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days' written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shmier time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.
7.8 Termination for Default of Contractor.
If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7 .2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to - 14 - 01005.00101907463.1
the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
7.9 Attorneys' Fees.
If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NONDISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict oflnterest.
Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any marmer with the interests of City or which would in any way hinder Contractor's performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual - 15 - 01005.0010/907463.1
orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
8.4 Unauthorized Aliens.
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
ARTICLE9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of Irwindale, 5050 N. Irwindale Avenue, Irwindale, CA 91706 and in the case of the Contractor, to the person(s) at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9 .2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9 .3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 9 .4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the - 16 - 01005.0010/907463.l
City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severabilitv.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which ( s )he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of "financial interest" shall be consistent with State law and shall not include interests found to be "remote" or "noninterests" pursuant to Government Code Sections 1091 or 1091.5. Contractor warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement.
Contractor further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Contractor is aware of and understands that any such act( s ), omission( s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
Contractor's Authorized Initials ---
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]
- 17 - 01005.0010/907463. l
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
ATTEST:
Laura Nieto
Chief Deputy City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Adrian Guerra
City Attorney
CITY:
CITY OF IRWINDALE
Julian A. Miranda
City Manager
CONTRACTOR:
Jan's Towing Inc.
By: _____________ _
Name:
Title:
Address:
By: _____________ _
Name:
Title:
Address:
Two corporate officer signatures required when Contractor is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR'S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR'S BUSINESS ENTITY. - 18 - 0 I 005.0010/907463.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On 2023 before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
.
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this fonn
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
D INDIVIDUAL
D CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
D PARTNER(S) D LIMITED
D GENERAL NUMBER OF PAGES
D ATTORNEY-IN-FACT
D TRUSTEE(S)
D GUARDIAN/CONSERVATOR
D OTHER DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES)) SIGNER(S) OTHER THAN NAMED ABOVE
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the docmnent to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2023 before me, personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 INDIVIDUAL
0 CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
0 PARTNER(S) 0 LIMITED
0 GENERAL NUMBER OF PAGES
0 ATTORNEY-IN-FACT
0 TRUSTEE(S)
0 GUARDIAN/CONSERVATOR
0 OTHER DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES)) SIGNER(S) OTHER THAN NAMED ABOVE 01005.0010/907463. I
EXHIBIT "A"
SCOPE OF SERVICES
I. SERVICES.
Pursuant to this Agreement, it shall be Contractor's responsibility to respond to all Irwindale Police Department (IPD calls for services to tow, impound, store and recover vehicles as requested by IPD, including, but not limited to the following: vehicles involved in crimes, traffic accidents, operated in a manner that violate applicable laws; vehicles impounded for evidence or taken into custody by IPD; vehicles involved in accidents or disabled for other causes (when alternative towing is either not appropriate or not requested by the owner or Contractor of the vehicle); abandoned vehicles; and vehicles which are within the jurisdiction of IPD. Contractor shall further be responsible for the removal of debris resulting from accidents and the necessary work preliminary to towing, such as removal of vehicles from ditches, righting said vehicles, separating entangled vehicles, disconnecting drive shafts, and other such work as shall be required in connection with the towing operations. This Agreement does not apply to, nor does it authorize, tows at the request of the public in either emergency or non-emergency situations. Those requests made to IPD by a private citizen for undesignated towing services will be referred to the appropriate tow provider. Contractor recognizes there will be no charge for the towing of City vehicles either to the IPD, City Yard, or to a suitable local place of repair.
Contractor shall respond to calls generated by or through the IPD, 24 hours a day, seven days a week, within the maximum response time of 15 minutes. At the time of notification, Contractor will advise dispatch when Contractor(s) are unable to respond or meet the maximum response time. IPD will refer tow services to the Contractor, on the condition that the Contractor is available to perform the services set forth in its agreement within the City. This Agreement applies to calls originating from or generated by or through IPD (collectively referred to as "calls" or "response calls"). If the Contractor is not available at the time of the request or is unable to respond within the required time, the handling officer or field supervisor may request another towing service.
In providing these services in the field, Contractor, including its agents and employees, shall conduct themselves in a safe manner and shall never, in any circumstance, act in a manner that may cause a danger to themselves or those at the scene. In no way shall the Contractor, including its agents and employees, be in any relation of dependence upon officers in performing under this Agreement and takes special note that, pursuant to Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4'" 895, the City and its officers owe no duty of care to Contractor, or its agents and employees.
01005.0010/907463.1
II. TOW TRUCK CLASSIFICATIONS.
A. Contractor shall equip, repair, and maintain all tow trucks covered under this Agreement in accordance with the provisions set forth in the California Vehicle Code; Title 13 of the California Code of Regulations, and consistent with industry standards and practices. 1) Notwithstanding Vehicle Code § 615, all tow trucks shall have recovery capabilities, wheel lift capabilities, and a boom meeting the specifications contained in this Agreement. For the purpose of this Agreement, a trailer for hire that is being used to transport a vehicle shall not qualify as a primary tow truck for rotation tow lists.
2) To the extent Contractor has a car carrier, such truck(s) is/are exempted from the recovery, wheel lift, and boom capability requirements.
B. A violation of the Gross Vehicle Weight Rating (GVWR), front axle weight rating, rear axle weight rating, maximum tire weight ratings, not maintaining 50% of the tow truck's unladen weight on the front axle when lifting/carrying a load or safe loading requirements of a tow truck shall be cause for suspension of a truck used in performing under this Agreement, and may be cause for termination of this Agreement.
C. There are four classes of tow trucks covered under this Agreement. In no case shall any tow truck be rated less than one-ton capacity. (The equipment specifications for each Class of tow truck are further described in Exhibit "A-1".)
01005.0010/907463.1
1) Class A - Light Duty. Class A tow trucks shall have a manufacturer's GVWR of at least 14,000 to 19,500 pounds with wheel lift capabilities. In addition, the Contractor may have a car carrier. Class A equipment specifications are those established by the California Highway Patrol, as amended from time to time, and are available through the Traffic Office at the IPD.
2) Class B - Medium Duty. Class B tow trucks shall have a GVWR of at least 26,000 to 33,000 pounds. The truck shall be capable of providing air to the towed vehicle. Class B equipment specifications are those established by the California Highway Patrol, as amended from time to time, and are available at the Traffic Office of the IPD. Contractor may have a carrier, but the carrier must be an additional unit.
3) Class C - Heavy Duty. Class C tow trucks with three axles and a GVWR of at least 48,000 pounds. The truck shall be equipped with air brakes and must be capable of providing and maintaining continuous air to the towed vehicle. Class C equipment specifications are those established by the California Highway Patrol, as amended from time to time, and are available at the Traffic Office of the IPD.
4) Class D - Super Heavy Duty. Class D tow trucks with three axles and a GVWR of at least 54,000 pounds. The truck shall be equipped with air brakes and must be capable of providing and maintaining continuous air to the towed vehicle. If this class of tow truck is used exclusively for salvage and recovery operations, there is no requirement for providing and maintaining continuous air to the towed vehicle. Class D equipment specifications are those established by the California Highway Patrol, as amended from time to time, and are available at the Traffic Office of the IPD.
5) Contractor shall provide sufficient tow trucks in each of the foregoing classes of sufficient higher weight class tow truck substitutions to ensure that the Contractor responds to each call for service within the 15-minute maximum response time. It is understood that the response time for heavyduty tow vehicles may reasonably exceed the maximum response time.
III. TOW TRUCK DRIVERS.
A. Minimum licensing. Contractor shall ensure that tow truck drivers ("Drivers") responding to calls initiated by IPD are qualified and competent employees of Contractor.
Contractor shall ensure that the tow truck drivers are trained and proficient in the use of the tow truck and related equipment, including, but not limited to, the procedures necessary for the safe towing and recovery of the various types of vehicles serviced through IPD rotation. Tow truck drivers shall be at least 18 years old and possess the following minimum class driver license:
1) Class A tow truck - A valid Class C license, or a valid Class A license with valid medical certificate.
2) Class B tow truck - A valid Class C license for non-regulated vehicles, or a valid Class A license with valid medical certificate for regulated vehicles pursuant to Vehicle Code Section 34500.
3) Class C and D tow trucks - A valid Class A license with valid medical certificate.
B. Licensing. The Class A license must be endorsed to allow operation of special vehicle configurations and/or special cargoes as described in Exhibit "A-1" attached hereto and incorporated herein by reference.
C. Current Driver Listing. Contractor shall maintain a current list of drivers.
Contractor shall provide a current list of his/her drivers to IPD upon implementation of this Agreement and not less than monthly thereafter. Contractor shall enroll/participate in the Department of Motor Vehicle's Pull Notice Program. Current and new employees shall submit their California driver's license numbers to the Contractor for input into Department of Motor Vehicle's Pull Notice Program. Contractor shall notify IPD upon any change in driver status, including the addition of any new driver(s), or the deletion of any driver(s) and revocation or 01005.0010/907463.1
suspension of a driver's license. An updated list shall be provided IPD within seven (7) calendar days of any change in driver status. Contractor shall, at a minimum, maintain the following information for each employee, and provide the same to the Police Chief not less than monthly:
a. Full name:
b. Date of Birth.
c. California driver license number and expiration date. d. Copy of valid medical certificate (if required).
e. Job title/description.
f. Current home address.
g. Current home phone number.
h. Type(s) oftruck(s) driver has been trained and instructed to · operate.
1. Certificate showing driver 1s California Tow Truck
Association (CTTA) trained.
D. Drivers' Aooearance. Drivers must maintain a neat, clean, and professional appearance at all times. Drivers must wear a distinctive uniform bearing the Contractor's name clearly visible with shirttails tucked into the waistband of their pants.
E. Screening of Drivers. Prior to utilizing any driver to perform services under this Agreement, Contractor shall provide to the City's Chief of Police a confidential screening application for that prospective driver containing information requested by the Police Chief. The Chief of Police shall screen the prospective driver and approve or deny that driver for service under this Agreement. The Police Chief shall deny that driver ifthe Police Chief determines, in his sole discretion, that the prospective driver: a) provided false or misleading information on the application, b) has been convicted of any felony or any theft-related crime, or c) has failed or refused a drug test.· Utilizing any driver before the Police Chief has completed the screening, or utilizing any driver who has been disapproved under this paragraph shall be grounds for suspending Contractor's participation in the tow rotation. If Contractor becomes aware of any driver being arrested or convicted for any felony or theft-related crime after approval by Police Chief, Contractor shall notify the City within 24 hours of such fact. The Chief of Police shall, in his sole discretion, require DOJ Live Scans for all drivers towing in the City. Contractor agrees to be responsible for all associated fees.
F. Removal of Drivers. At any time during the term of this Agreement, the Police Chief, in his or her sole discretion and with or without cause, may direct Contractor to no longer utilize a particular driver to perform services for the City under this Agreement. Such direction 01005.0010/907463.l
shall be given by written notice to Contractor. Upon receipt of such notice, Contractor shall innnediately discontinue use of the driver to perform services under this Agreement. Upon request by Contractor, the Police Chief may, in his or her sole discretion, provide written notice reinstituting the driver's eligibility to perform services for City.
IV. STORAGE OPERATIONS.
A. Contractor Responsibilities.
01005.0010/907463.l
1) Contractor shall be responsible for all vehicles stored by Contractor, together with all accessories and equipment on each vehicle and all personal property in each vehicle. It shall be Contractor's responsibility to protect the stored equipment and property against loss or damage by fire, theft, weather or other causes. In the event of loss or damage to a stored vehicle, its accessories or equipment, or personal property contained in the vehicle, Contractor shall be responsible to the owner for all losses or damages.
Personal property in vehicles stored by Contractor shall not be disposed of to defray any charges for the towing or storing of a vehicle; and, if not called for by the owner within thirty (30) days after date of notice by IPD of impound or storage, all such property shall be disposed of in accordance with all State, County and Municipal laws, statutes, ordinances and regulations, including without limitation, Vehicle Code § 10652 (reporting storage of vehicles over thirty (30) days).
2) Contractor shall take all reasonable precautions as directed by IPD to. avoid damage to any evidence, such as fingerprints or stains. Vehicles taken into custody that involve evidence shall be stored in a secured, locked area which is inside a structure protected against entry by unauthorized persons.
Contractor shall park all stored or impounded vehicles in such a marmer as to prevent any damage while other vehicles are being moved or parked in the vicinity of said vehicles. Vehicles held for thirty (30) days shall be secured in an inside storage area.
3) Contractor must maintain a locked and secured storage area for vehicles held for police investigation or preservation of evidence ("Police Hold Vehicles"). Police Hold Vehicles shall be placed in a secured, enclosed, inside storage area ("Inside Storage Area"). The Police Hold Vehicles Inside Storage Area shall be capable of being secured in a manner acceptable by the Police Chief, or his/her designee, so as to assure the integrity and chain of custody of evidence or other information derived from a vehicle, which is subject to a police hold. Vehicles so stored shall not be moved, relocated, or physically touched by employees of Contractor except as authorized by the Police Chief, or his/her designee, and upon written authorization of City.
B. Storage Facilities.
1) Contractor shall maintain a vehicle storage area to impound towed vehicles large enough to accommodate all vehicles stored less than thirty (30) days.
The primary vehicle storage area must have the legal storage capacity for eighty (80) vehicles.
2) All vehicles impounded or taken into custody by IPD must be stored by Contractor in areas that are enclosed by substantial wire fences or walls that have gates or doors which lock. Such fences or wall enclosures shall be not less than six (6) feet in height and shall have not less than one (1) gate or door of adequate width and height. A fence or wall enclosures shall be maintained and repaired in good condition throughout the term of this Agreement. Such fences or walls shall be repaired within twenty-four (24) hours of the time of any damage thereto to insure proper protection of the stored vehicles. The storage area must be paved with concrete or asphalt and maintained in good condition. The Police Chief, or his/her designee, may modify security requirements necessaiy to coincide with local conditions.
3) The storage facility shall be open and attended from 8:00 a.m. to 5:00 p.m., Monday through Friday, and shall have a responsible person on call on a twenty-four (24) hour basis, seven (7) days a week. The designated on-call person(s) shall be available to release vehicles between 5:00 p.m. and 8:00 a.m., Monday through Friday and a twenty-four (24) hour basis on Saturday, Sunday and holidays.
C. Location And Maintenance Of Storage Facility.
01005.0010/907463.1
1) Contractor shall maintain and provide at least one place of business which is also the location of the storage facility for the vehicles stored under this Agreement within seven (10) miles from the boundaries of City, as may be modified from time to time. The business address and primary storage facility shall be located reasonably close to the police station, as determined by the Police Chief in his/her sole opinion.
2) The primary storage facility shall be at the same location as the business address. The vehicle and personal property shall be released at a primary storage facility upon request of the owner. Except with respect to Police Hold Vehicles, upon proper identification or proof of authority, the owner or his designated representative shall be permitted to remove personal effects from a stored vehicle without reference to any costs or charges pending because of towing or storage of said vehicle. Police Hold Vehicles shall not be released without the presentation of a fully executed property release form issued by the IPD, and upon compliance with this paragraph. 3) Contractor shall furnish the Police Chief, or his/her designee, with the addresses of all storage facilities whenever there is a change. 4) All storage facilities shall comply with all land use and zoning ordinances of the applicable jurisdiction in which they are located and all requirements and specifications described in this Agreement. All landscaped and paved areas of Contractor's premises shall be maintained in a neat and orderly . condition with the landscape in a healthy condition and free of weeds and litter.
5) Any storage space shall be kept free of weeds, litter, debris, and any other materials or substances or any automotive parts unless said parts are stored as evidence for the Police Department. Contractor shall take all reasonable steps to prevent contamination of soil by gasoline, oil, grease, or any other hazardous substances as specified by Federal, State, County or Municipal regulations.
6) Contractor shall post not less than one outdoor sign at each storage facility, at or near the entrance thereof, identifying Contractor's name, telephone number, and the business telephone number ofIPD.
7) Unless the vehicle is subject to a police hold, as described in Section (C)(l )( c ), above, Contractor shall be able to properly conduct a lien sale as outlined in Vehicle Code § 22851.1.
V. INSPECTIONS.
IPD or, as authorized by IPD, the California Highway Patrol ("CHP") may conduct inspections at any time of all tow trucks to determine whether such tow trucks are safe and adequately equipped to perform the service required of such class level tow truck. IPD or CHP may also conduct inspections at any time of Contractor's business premises to determine whether the premises are secured and maintained according to the terms of this Agreement. IPD or CHP may conduct inspections without notice during normal business hours. Contractor shall not dispatch a tow truck (to a IPD call) that has not been inspected and approved by IPD or CHP. IPD or CHP shall inspect a tow truck within thirty (30) days of a request from Contractor. If Contractor fails an inspection for any reason (as determined in the reasonable discretion of IPD or CHP) is entitled to only one (1) re-inspection. Failure to pass the re-inspection may be cause for disqualification of the tow truck from use in performing this Agreement.
VI. BUSINESS RECORDS.
A. Contractor shall maintain records, at its place of business, relating to tow services furnished under this Agreement. At the request of IPD, Contractor shall furnish IPD a written list of all vehicles that have been towed by Contractor under this Agreement. Such list shall show the nature of service, description of vehicles, date of tow, tow truck drivers name, start time, end time, storage location of each vehicle, dates of storage, itemized costs of towing and storage, vehicle 01005.0010/907463.l
make and model, license number and vehicle serial number. Upon request, Contractor shall furnish IPD with an itemized list of all charges incurred.
B. Contractor shall also maintain business records relating to personnel, insurance, personnel taxes, payroll, applicable operating authorities, local operating authorities, lien sale actions, auctions, FCC and any other necessary licensing (if any), and non-IPD tows.
C. IPD may inspect all Contractor records without notice during normal business hours. Contractor shall permit IPD to make copies of business records at their place of business, or to remove business records for the purpose of reproduction. IPD shall provide a receipt for any (original) records removed from the place of business. Records shall be maintained and available for inspection for a period of two years plus the current term of this Agreement. Failure of Contractor to comply with the records requirement shall be cause for termination of this Agreement.
D. For purposes of audit by the City, Contractor shall also keep accurate records of all gross receipts earned as a result of the business conducted under the Agreement, excepting therefrom all sales and excise taxes. Receipts shall be issued to all customers. The records must be supported by source documents such as receipt slips, cash register tapes, invoices or other pertinent information. Contractor shall read and record the totals at the beginning and end of each calendar day. Such records must be available at all times and shall be subject to inspection, review and audit during the entire Agreement period by the Police Chief, or his/her designee, or City Finance Director or his representative. Such audits may be conducted at the discretion of the Police Chief, or his/her designee, or the Finance Director, either unannounced or by appointment.
Contractor's failure to have records of all gross receipts immediately available for audit shall be cause for termination of this Agreement by City.
VII. CONDUCT AND DEMEANOR.
A. While involved in IPD requested tow operations, Contractor and/or its employees shall refrain from any act(s) of misconduct, to include, but not limited to, any of the following:
01005.0010/907463.1
1) Rude or discourteous behavior.
2) Lack of service, selective service, or refusal to provide service which Contractor is/should be capable of performing.
3) Any act of sexual harassment or sexual impropriety.
4) Unsafe driving practices.
5) Exhibiting any objective symptoms of alcohol and/or drug use. 6) Appearing at the scene of a IPD tow call with the odor of an alcoholic beverage emitting from his/her breath. Contractor/tow truck driver shall submit to a preliminary alcohol-screening test upon demand ofIPD.
B. Contractor shall not leave any tow site without cleaning the location sufficient to restore normal traffic patterns.
C. All complaints related to services under this Agreement received by IPD against Contractor (or its employees) will be accepted and investigated in a fair and impartial manner by IPD with the full cooperation of Contractor. Contractor will be notified of the results of any investigation before any action is taken.
VIII. COMPLIANCE WITH LAW.
A. Contractor, and its employees, shall, at all times, be knowledgeable of, and comply with, all Federal, State, and local laws and ordinances, which include, but are not limited to, those laws which are applicable to Contractor as promulgated by the California Department of Transportation, the California Highway Patrol, and industry practices endorsed by the California Tow Truck Association. Contractor shall retain an adequate number of trained and properly licensed and permitted (as required by Vehicle Code§ 12520) personnel assigned to perform the work described in this Agreement.
1) In the event of a traffic violation of any kind by Contractor's tow truck driver(s) which is/are known by IPD, Contractor shall be advised of the violation(s) by IPD. Except as provided below, Contractor will be granted the opportunity to take necessary steps to ensure that the same or similar violation does not reoccur. Any subsequent traffic violation( s) may be cause for termination ofthis Agreement.
b) Any traffic violation(s) chargeable as a felony, or a traffic violation involving drugs or alcohol (e.g., driving under the influence of drugs or alcohol) or driving on a suspended or revoked license, shall be cause for termination of this Agreement.
B. The provisions contained herein do not preclude IPD from taking appropriate enforcement or administrative action for any violations of law.
C. Any conviction of Contractor, or any of its agents, employees or officers, involving a stolen or embezzled vehicle, frand related to the towing business, stolen or embezzled property, a crime of violence, a drug related offense, felony or misdemeanor driving while under the influence of alcohol and/or a drug, whether or not in connection with the performance of this Agreement or not, shall be cause for termination of this Agreement.
IX. INVENTORY OF VEHICLE CONTENTS.
A detailed written inventory of all personal property in any vehicle which is towed and stored or towed and impounded will be completed by the Police Department employee requesting Contractor's services, and the tow Contractor shall complete the appropriate section on the Police Department's form and shall sign said form. A copy of said signed form shall be given to the tow truck driver and shall be retained by Contractor. Whenever any item is removed from a stored 01005.0010/907463.1
vehicle and taken to another place of storage, Contractor shall provide a receipt, with a copy placed in the stored vehicle and a copy given to the Police Department.
X. SERVICE COMPLAINTS.
Contractor shall post a notice in a conspicuous place at Contractor's place of business of a size which is at least 8 112" x 11" informing the public of the right to make complaints regarding service provided by Contractor, and shall include the name and location where complaints can be made to City. Contractor shall notify IPD, in writing, within seventy-two (72) hours of any complaints made to Contractor regarding the performance of service in connection with towing or storage, or concerning rates, charges of fees, or any claims, or any legal actions filed, delivered or served upon or instituted against Contractor or any of its agents, officers or employees.
XI. ADVERTISING.
Contractor shall not display any sign or engage in any advertisement indicating an official or unofficial connection with IPD or the Department of Motor Vehicles. Examples of prohibited signage include, without limitation, "Official IPD Tow," "Approved by IPD," "IPD Tow." The provisions under this Section shall not preclude the Police Chief, or his/her designee, from implementing a system to mark and identify particular tow trucks as having passed IPD inspection. 01005.0010/907463.1
EXHIBIT "A-1"
EQUIPMENT SPECIFICATIONS AND USE REQUIREMENTS
I. GENERAL EQUIPMENT SPECIFICATIONS AND USE EQUIPMENT
A. Tow Truck and Car Carrier Classifications: Tow truck and car carrier classifications are based on the truck chassis GVWR, and the classification system used by the American Trucking Association (ATA) and truck manufacturers.
ATA and Manufacturers Classification
a. Class 3 - 10,000-14,000 lbs. GVWR
b. Class 4 - 14,001-16,000 lbs. GVWR
c. Class 5 - 16,001-19,500 lbs. GVWR
d. Class 6 -19,501-26,000 lbs. GVWR
e. Class 7 - 26,001-33,000 lbs. GVWR
f. Class 8 - 33,001 lbs.-or more GVWR
CHP Classification
(Class A Tow Trucks)
(Class A Tow Trucks)
(Class A Tow Trucks)
(Class B Tow Trucks)
(Class B Tow Trucks)
(Class B Tow Trucks)
B. Eguipment Limitations. All towing equipment, recovery equipment, and carrier ratings are based on structural factors only. Actual towing, carrying, and recovery capacity may be limited by the capacity of the chassis and the optional equipment selected.
C. Towing Limitations
1) The total weight of the truck, including the lifted load, shall fall within the GVWR and not exceed either the front axle weight ratings (FA WR) or rear axle weight ratings (RA WR).
2) The truck must meet all applicable state and/or federal standards. 3) The front axle load must be at least 50% of its normal or unladen weight after the load is lifted.
D. Identification Labels. Each piece of towing equipment shall have a label or identification tag permanently affixed to the equipment in a prominent location to identify the manufacturer, serial number, model, and rated capacity.
E. Recovery Eguipment Rating. The basic performance rating of the recovery equipment is the weight the equipment can lift in a winching mode, when the boom is static at a 30 degree elevation with the load lines vertical and the lifting cables sharing the load equally, measured with a live load (weight or load cell). 01005.0010/907463.1
1) The structural design of the recovery equipment must have a higher load capacity than the performance rating(s).
2) Winches shall conform to or exceed the specifications set forth by the Society of Automotive Engineers (SAE) Handbook, SAE 1706. 3) All ratings for cable and chain assemblies are for the undamaged assembly condition. All cable and chain assemblies should be the same type, construction, and rating as specified by the original equipment manufacturer (OEM) for the equipment.
F. Safety Chains. Safety chains shall be rated at no less than the rating specified by the OEM.
1) Two safety chains shall be used for vehicles being towed. The safety chains shall be securely affixed to the truck bed frame or wrecker boom, independent of the towing sling, bar or hitch, wheel lift, or underlift towing equipment. The towed vehicle shall be secured to the towing equipment independent of the safety chains by either two chains or two straps. 2) Vehicles being transported on slide back calTiers shall be secured by four tie-down chains or straps independent of the winch or loading cable. 3) All safety connections and attachments shall have a positive means of sufficient strength, to ensure that the safety connection or attachment cannot become disengaged while in transit.
G. Control/Safety Labels. All controls shall be clearly marked to indicate proper operations, as well as any special warnings or cautions.
H. Signs. All tow trucks shall display signs on both sides containing Contractor's company name, business address, and telephone number. The signs shall be permanently affixed and in compliance with the requirements of Section 27907 of the Vehicle Code.
I. Wire Rope (Cable). Wire rope shall be maintained in good condition. Only wire rope with swaged ends, wedge locks, or braided ends, with metal sleeves in the loops, shall be approved for use as approved by the CHP. Wire rope is not in good condition when it is stranded, knotted, crushed, excessively rusty, kinked, badly worn, when there are 12 or more wires broken in lay length, or where there is other visible evidence of loss of strength.
II. TOW TRUCK CLASSIFICATIONS AND EQUIPMENT SPECIFICATIONS A. Class A Tow Truck Minimum Eguipment Specifications:
1) 10,000 pound GVWR chassis.
2) 4-ton recovery equipment rating.
3) Hydraulic or mechanical winch( es).
01005.0010/907463.1
4) 100 ft. 3/8" x 19 cable or original equipment manufacturer's (OEM) specifications.
5) Tow chains, 5/16" alloy or OEM specifications, J/T hook assembly. 6) Safety chains, 5/16" alloy or OEM specifications.
7) Tow sling rating 3,000 pounds, when equipped.
8) Wheel lift safety straps or equivalent mechanical device. 9) All required wheel safety straps, or equivalent wheel retention device, tiedown straps, and safety chains shall be used during towing operations. 10) Tow dolly.
11) One 3-ton snatch block.
12) Wheel lift rating- retracted 3,000 pounds.
B. Class A Car Carrier - One Car Minimum Equipment Specifications 1) 10,000 pound GVWR chassis.
2) Hydraulic or mechanical winch.
3) 50 ft. 3/8" 6 x 19 cable or OEM specifications.
4) J/T hook loading bridle/chains.
5) Safety chains, 5/16" alloy or OEM specifications; four safety chains for the vehicle being transported.
6) All required tie-down straps and safety chains shall be used as required during towing operations.
C. Class A Car Carrier - Two Cars Minimum Equipment Specifications 1) 16,001 pound GVWR chassis.
2) Hydraulic or mechanical winch.
3) 50 ft. 3/8" 6 x 19 cable or OEM specifications.
4) J/T hook loading bridle/chains.
5) Safety chains 5/16" alloy or OEM specifications; four safety chains for the vehicle being transported and two safety chains for the vehicle being towed. 6) All required tie-down straps and safety chains shall be used during towing operations.
D. Class B Tow Truck Minimum Eguipment Specifications
1) 19,501 pound GVWR chassis.
2) Air brakes or hydraulic w/air hookup package.
3) 14-ton recovery equipment rating.
4) Hydraulic or mechanical winch( es).
5) 150 ft. 7/16" 6 x 10 cable or OEM specifications.
6) Tow chains, 112" alloy or OEM specifications.
7) Safety chains, 1/2" alloy or OEM specifications.
8) Tow sling rating 7,000 pounds.
9) Two 8-ton snatch blocks.
10) Wheel lift safety straps or equivalent mechanical device. 01005.0010/907463.1
11) All required wheel safety straps, or equivalent wheel retention device, tiedown straps, and safety chains shall be used during towing operations. 12) Wheel lift or under lift rating - retracted, 10,000 pounds.
E. Class B Car Carrier Minimum Equipment Specifications 1) 19,501 pound GVWR chassis.
2) Hydraulic or mechanical winch.
3) 50 ft. 3/8" 6 19 cable or OEM specifications.
4) J/T hook loading bridle/chains.
5) Safety chains, 5/16" alloy or OEM specifications; four safety chains for each vehicle being transported and two safety chains for the vehicle being towed.
6) All required tie-down straps and safety chains shall be used during towing operations.
F. Class C Tow Truck Minimum Equipment Specifications
1) 33,000 pound GVWR chassis.
2) Air brakes w/air hookup package and single control compressor. 3) 25-ton recovery equipment rating.
4) Hydraulic or mechanical winch( es).
5) 200 ft. 5/8" 6 x 19 cable or OEM specifications.
6) Tow chains, 5/8" alloy or OEM specifications.
7) Safety chains, 5/8" alloy or OEM specifications.
8) Tow sling rating 12,000 pounds.
9) Two 12 ton snatch blocks.
10) Under lift rating- retracted, 25,000 pounds.
G. Class D Tow Truck Minimum Equipment Specifications
1) 50,000 pound GVWR chassis.
2) Air brakes w/air hookup package.
3) 30-ton recovery equipment rating.
4) Hydraulic or mechanical winch( es).
5) 250 ft. 3/4" 6 x 19 cable or OEM specifications.
6) Tow chains, 5/8" alloy or OEM specifications.
7) Safety chains, 5/8" alloy or OEM specifications.
8) Tow sling rating 20,000 pounds.
9) Two 12-ton snatch blocks.
10) Under lift rating - retracted, 32,000 pounds.
01005. 0010/907463 .1
III. AUXILIARY EQUIPMENT
A. Reguired Eguipment All Classes
1) Extension - Brake and tail lamps.
2) Fire Extinguisher (Approved 4-B, Crating or better). 3) Flashlight.
4) Broom.
5) Shovel.
6) Wrecking bar (large pry bar).
7) Reflective triangles.
8) Equivalent of six 30-minute flares.
9) Covered trans can( s) with absorbent.
10) Shop rags and/or paper towels.
11) Shop to truck communications (C/B and cellular phones excluded).
B. Service and Other Eguipment (For service calls, each tow truck shall be eguipped with the following service equipment):
1) Adequate emergency supply of fuel in an approved container. 2) Booster battery or hot box starting system.
3) Hydraulic jack capable of handling passenger cars and light trucks. 4) Metric and standard lug wrenches.
5) Rubber mallet/hub cap tool.
6) Lockout tools.
7) Motorcycle straps (Class A only).
8) Sledge hammer.
9) Tool kit may include:
(a) Assorted open end wrenches; standard 1/4" - 7/8" and Metric, 6- 19mm.
(b) Assorted screwdrivers; Straight blade, Phillips and Torx. ( c) Crescent wrench.
( d) Ball peen hammer.
( e) Pliers.
(f) Battery and terminal cleaning tools.
(g) Mechanic's wire.
(h) Plastic electrical tape/duct tape.
(i) Tire valve core tool.
G) Miscellaneous fuses.
(k) Small pry bar.
(I) Socket Sets; 1/4" - 1" and 6-19 mm.
(m) Ratchet and extensions.
01005.0010/907463.1
C. Class A Reguired Eguipment
1) One 3-ton rated snatch block.
2) Towing sling - J/T hook tow chain assembly, a 4" x 4" x 48" and a 4" x 4" x 60" wooden crossbeam, a pair of spacer blocks, a steering wheel clamp, a towing dolly, and safety chains.
3) Wheel lift - Wheel safety straps or equivalent mechanical device, steering wheel clamp, towing dolly, and safety chains.
4) Car calTier - J/T Hook loading bridle, a 4" x 4" x 48" and 4" x 4" x 60" wooden crossbeam, a pair of spacer blocks, and two pairs of safety chains.
D. Class B Reguired Eguipment
1) Towing sling - J/T hook tow chain assembly, a 4" x 4" x 48" and a 4" x 4" x 60" wooden crossbeam, a pair of spacer blocks, a steering wheel clamp, a towing dolly, and safety chains.
2) Wheel lift - Wheel safety straps or equivalent mechanical device, steering wheel clamp, towing dolly, and safety chains.
3) Truck hitch - Tow chain assembly, 4" x 4" x 60" and 6" x 6" x 60" wooden crossbeams (as necessary), aluminum tow angle(s), and safety chains. 4) Under lift - Assortment of lift forks/adapters, safety tie-down chains, and safety chains.
(a) Two 8-ton rated snatch blocks.
(b) Air hoses and necessary fittings to provide air to the towed vehicle.
E. Classes C and D Reguired Eguipment
01005.0010/907463.l
1) Towing sling - Tow chain assembly, 4" x 4" x 60" and 6" x 6" x 60" wooden crossbeam, a pair of spacer blocks, a steering wheel clamp, and safety chains.
2) Truck hitch - Tow chain assembly, 4" x 4" x 60" and 6" x 6" x 60" wooden crossbeams (as necessary), aluminum tow angle(s), and safety chains. 3) Under reach - Assortment of lift forks/adapters, safety tie-down chain(s), and safety chains.
(a) Steering wheel clamp.
(b) Two 12-ton rated snatch blocks.
( c) Air hoses and necessary fittings to provide air to the towed vehicle.
EXHIBIT "B"
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
I. Section 2.1, "Contract Sum," is hereby amended and shall now read as follows:
"2.1 Contract Sum. Contractor shall receive no compensation from the City in connection with this Agreement. For the Services rendered pursuant to this Agreement, the Contractor shall be permitted to participate in the City's Rotation Tow Program, for which Contractor may become eligible to collect certain chmges and fees for services rendered from the persons who receive those services. In no event shall Contractor be paid by, or become eligible for payment directly from, the City. The schedule of fees and chmges, including those chmges that must be collected by Contractor for the benefit of the City, me included in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. This Agreement further requires that Contractor shall attend all project meetings reasonably deemed necessaTY by the City, and Contractor shall not be entitled to any additional compensation for attending said meetings."
II. Section 2.2, "Method of Payment," is hereby amended and shall now read as follows:
"2.2 Method of Payment. Contractor understands and accepts that it is Contractor's obligation and sole responsibility to collect any of Contractor's fees for towing and storage including but not limited to, vehicles stored or impounded for State law violations, and any other fees provided for under this Agreement. Contractor shall not chmge any fees in excess of the fees approved by the City Council. Contractor shall not collect or be entitled to any City vehicle release fees imposed by the City." III. Section 2.3, "Reimbursable Expenses," is hereby deleted and is hereby replaced with the following section entitled "Franchise Fees" which shall read as follows:
"2.3 Franchise Fees. The Contractor shall pay a fee to the City in consideration for its permitting Contractor to participate in the Rotation Tow Program. Contractor shall pay City a monthly franchise fee ("Franchise Fee") of TWO THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($2,250) as compensation to provide services for the Rotational Tow Program. Payment of the Franchise Fee must be submitted to City within 15 days following the previous month. Failure to rerµit the fees in a timely manner is grounds for suspension and/or revocation of any awmd of Contract by City in its sole discretion. The purpose of the fee is to offset the City costs to monitor the Tow Rotation Program, periodically audit and inspect records, administrate complaints, and other administrative duties that otherwise would be borne entirely by the City. The amount of the Franchise Fee has been determined to not exceed the amount reasonably necesSaTY to reimburse the City for its actual and reasonable costs incurred in connection with the 01005.0010/907463.1
program. (Reference California Vehicle Code section 12110.) The Franchise Fee may be renegotiated annually between the City and the Contractor in good faith, as the City detem1ines that adjustments of the fee are necessary, if actual costs for administration of the towing program exceeds or otherwise varies from the estimated costs upon which this Agreement is based.
IV. Section 2.4, "Invoices," is hereby deleted.
V. Section 2.5, "Waiver," is hereby deleted.
VI. Subsection d, "Professional Liability," of Section 5.1, "Insurance Coverages," is hereby deleted.
VII. Section 5.5, "Additional Insurance Requirements" is hereby added and shall read as follows:
"5.5 Additional Insurance Requirements. In addition to the requirements in Section 5. 0 of this Agreement, Contractor shall maintain at least the following minimum levels of insurance from an insurance carrier admitted in California, in a form and content satisfactory to City:
(a) Commercial Business Automobile Liability as required by Vehicle Code§ 16500.5. Bodily injury and property damage with a combined single limit of not less than $1,000,000 for each class oftow trucks. These minimum standards are to include non-owned and hired auto coverage.
(b) On-Hook Coverage/Garage Keepers Legal Liability. Insuring the vehicle in tow with limits based on the size of the tow truck.
Class A tow truck
Class B tow truck
Class C tow truck
Class D tow truck
$50,000
$75,000
$150,000
$150,000
( c) Garage Liability insurance, including premises and operations coverage for bodily injury and property damage with a combined single limit of not less than $1,000,000."
VIII. Section 7.3, "Retention of Funds," is hereby deleted.
IX. Section 7.8, "Termination for Default of Contractor," is hereby amended and shall now read as follows:
"7 .8 Termination of Contractor With Cause or Removal from Rotation List.
Contractor may be terminated/removed from the rotation list at any time with or without 01005.0010/907463.1
cause by the City. If the Agreement is terminated with cause, the following provisions shall apply:
(a) The Police Chief, or his/her designee, shall be authorized to take action against Contractor for violations ofthis Agreement investigated and confirmed or sustained up to and including termination of this Agreement. (b) Overcharging by Contractor shall be cause for termination of this Agreement in the sole discretion of the Police Chief, or his/her designee. ( c) Failure by Contractor to respond to calls as required, meet the Maximum Response Time requirements, meet the Average Response Time on a regular basis, or perform the required towing or service as required by this Agreement shall be cause for termination ofthis Agreement in the sole discretion of the Police Chief, or his/her designee.
( d) Failure of Contractor to maintain the minimum insurance requirements as set forth in the Agreement shall be cause for termination of this Agreement in the sole discretion of the Police Chief, or his/her designee. (e) A violation of the Biennial Inspection of Terminals (BIT) Program requirements shall be cause for termination of this Agreement. (f) Failure of Contractor, its employees, or its agents to maintain professional conduct becoming of a representative of the City, in the sole discretion of the Police Chief, shall be cause for termination of this Agreement." 0 I 005.0010/907463.l
EXHIBIT "C"
SCHEDULE OF COMPENSATION
I. The approved rate structure for all towing, storage and related services requested by IPD as described under Section 2.3 Additional Services or for eligible requested services is described herein. Contractor agrees to perform the services described herein to become eligible to receive, as full payment for services rendered, the fees described herein. If Contractor charges rates above those approved by the City, Contractor shall be in violation of the Agreement and subject to termination.
A. RATES.
The towing and storage rates charged by Contractor shall not exceed the rates charged by the California Highway Patrol ("CHP") in Los Angeles County. Should there be a dispute regarding the fees and charges for towing and/or storage of vehicles or other charges, said dispute shall be decided by thePolice Chief or his/her designee. Such decision by the Police Chief or his/her designee shall be final and binding upon Contractor; and Contractor shall not make any demand upon the owner of the vehicle for a sum in excess of the amount determined by the Police Chief or his/her designee. Contractor may request a rate increase if such increase is consistent with and does not exceed the rates charged in the CHP in Los Angeles County, however, any rate increase shall be subject to the approval of the City's Police Chief who may, in his sole discretion, approve or deny any request.
Owners of vehicles towed by order or request of the IPD are responsible for all services, whether regular or special, associated with the towing service. Contractor shall provide itemized bills, distinctively showing charges for all classifications of services, including the charges for late payment. Neither City nor IPD will be responsible or liable for any costs of towing services in the event that the vehicle owner refuses or is unable to pay for the services.
The following rate structure shall apply for all towing and storage services requested by City through IPD and shall be applicable for the term of the Agreement:
1) LIGHT DUTY TOWING RATE: $175.00 PER HOUR
(1 Hour Minimum)
The base rate per tow shall apply to all towed passenger vehicles and trucks rated at less than 10,000 lbs. gross vehicle weight. This rate also applies to difficult removal work involving the removal of vehicles from deep ditches or flood control channels or burning apart of two entangled vehicles.
2) MEDIUM DUTY TOWING RATE: $175.00 PER HOUR
(1 Hour Minimum)
01005.0010/907463. l
The two (2) axle category shall apply to all towed vehicles with a rate capacity of 10,000 lbs. gross vehicle weight to, but not including, vehicles with 30,000 lbs. gross vehicle weight.
3) HEAVY DUTY TOWING RATE: $175.00 PER HOUR
(1 Hour Minimum)
The three (3) axle hourly rate shall apply to all towed vehicles with a rate capacity of 30,000 pounds gross vehicle weight or· more.
The hourly rate for medium and heavy duty towing (two and three axle) shall commence when the tow truck arrives on the scene and includes difficult removal work involving the removal of vehicles from deep ditches or flood control channels, burning apart two entangled vehicles, uprighting overturned vehicles, and the use of special equipment and preparation prior to towing.
4) CITY VEHICLE: NO CHARGE
Contractor agrees that it shall, at no charge, tow such City vehicles as may be requested by IPD from time to time.
5) STORAGE: (Per Day)
(a) Automobiles $55.00 Per Day/Per Unit
(b) Motorcycles $55.00 Per Day/Per Unit
(c) Trucks, under twenty feet (20') $55.00 Per Day/Per Unit (d) Trucks, over twenty feet (20') $45.00 - 55.00 Per Day/Per Unit
The above standard rates apply per vehicle for storage per twenty-four hour period, or any portion thereof. Contractor shall free of charge tow all vehicles designated for sale in connection with an asset forfeiture proceeding.
6) LOCK-OUTS.
When requested by IPD to assist with a lock-out (e.g., with the use of a "slimjim" or similar device), Contractor may charge up to$ 45.00 where no towing services are provided. 7) ADDITIONAL CONDITIONS:
(a) Above towing charges shall apply regardless of the location from which the tow is made or the location of the storage area or garage where the vehicle is delivered.
Such towing charges shall include clearing and cleanup of accident site, as required by IPD. 01005.0010/907463.1
(b) There shall be no additional charge for righting an overturned passenger car or light pickup truck, if towing is involved. ( c) There shall be no additional charge for disconnecting a drive shaft where required for towing.
( d) The service of reconnecting the drive shaft, m the event such reconnecting is necessary, shall be performed without additional charge.
B. POSTING RATE SCHEDULE.
1) POSTING RATE SCHEDULES: Contractor shall post and maintain a sign or signs which have received the approval of the Police Chief, or his/her designee, in a conspicuous place or places on Contractor's premises, in a location designated by the Police Chief, or his designee, which gives notice of:
(a) The approved Rate Schedule for towing and storage services under this Agreement, and
(b) The method of payment(s) which are acceptable, which include credit cards and U. S. currency, and
( c) The requirement stating that a written receipt shall be supplied by Contractor for amount of payment received, and
( d) The telephone number and address of the Police Chief, or his/her designee.
01005.00 I 0/907463. I
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
I. TERM.
In accordance with Section 3 .4 of this Agreement, and unless earlier terminated in accordance with Section 7.8 ofthis Agreement, this Agreement shall continue in full force and effect for a period of three (3) years from the date oftlris Agreement. The City shall have the option to extend this Agreement on or before the expiration, for up to two (2) one year periods, or any portion thereof. In the event the City exercises the option to extend, all terms shall remain the same, except that (i) the service charges (Exlribit "B") may be renegotiated between the City and Contractor in good faith, and (ii) the City may impose any additional conditions necessary to improve service to the public. If the City exercises its option(s) under this provision, Contractor understands and agrees that any additional conditions must be approved in writing by the City Council.
11. ROTATING CALL LIST.
A. City shall use its best efforts to assign requests for towing services to Contractor on a rotating basis between Contractor and all other towing companies holding tow franchises with the City. Each call for service will be considered one turn on the rotation, regardless of the number of velricles towed from the scene, and the Contractor shall be moved to the bottom of the list. The Contractor will send the appropriate number of trucks to handle the call for service, unless unable to do so, in which case Section II.A.2 of this Exhibit "D" below shall apply. City, in its sole and absolute discretion, reserves the right to place a request for towing or storage services out of rotation under any of the following circumstances:
1) At the sole discretion of the Contract Administrator for Contractor's failure to perform or in the Contract Administrator's opinion that Contractor is unable to perform; 2) There is a multiple vehicle accident that exceeds the capacity of Contractor on-call at such time;
3) Contractor is unable to respond in a timely marmer as set forth in Section III of this Exhibit "A" below;
4) Failure of Contractor to make any payments as required by this Agreement; and/or
5) Failure of Contractor to remove an employee from Iris/her service of City calls after City requests the removal of said employee from servicing City's tow and/or storage requests.
B. City shall use its best efforts to assign requests for towing services in connection with the abandoned velricle abatement program to Contractor on a rotating basis between Contractor and all other towing companies holding tow franclrises with the City. Each call for 01005.0010/907463.1
service will be considered one turn on the rotation and will be limited to one (1) towed vehicle per call. Upon completion of said towing services, Contractor shall be moved to the bottom of the list.
C. Subject to the power and authority of City, as provided by law and in accordance with this Agreement, City shall in all cases, in its sole and absolute discretion, determine the quantity, quality, and acceptability of the services provided under this Agreement. City shall, in its sole and absolute discretion, decide any questions that might arise relative to the fulfillment of this Agreement or to the obligations of the Contractor hereunder.
III. RESPONSE TIMES.
All services shall be performed in a timely manner, and in no event shall the level of service or response time fail to meet the following requirements.
A. MAXIMUM RESPONSE TIME FOR CRITICAL TOWS: Contractor shall respond to IPD calls for Critical tow circumstances (traffic collisions, impounds, hazards, road blockages) within fifteen (15) minutes from the time the Contractor receives the request to the time the tow vehicle arrives at the location from which the critical tow is to be made. In no event shall the response time exceed fifteen (15) minutes for a critical tow.
B. MAXIMUM RESPONSE TIME FOR NON-CRITICAL TOWS: In no event shall the response time exceed twenty (20) minutes for a non-critical tow. Notwithstanding the foregoing, if Contractor's dispatcher, at the time the call is placed, notifies IPD that a tow unit cannot respond within the maximum response time and gives, in the sole and absolute discretion of the Police Chief, or his/her designee, a reasonable cause therefore, which is beyond the control and without the fault or negligence of Contractor, then Contractor will not be deemed to have failed to respond to a call for service and the Police Chief, or his/her designee, shall have the right to contact another tow truck services company, and cancel the call for service.
C. AVERAGE RESPONSE TIME: The Contractor's response to calls from IPD for towing service shall not exceed an average of fifteen (15) minutes (for both critical and non-critical calls combined) from the time the Contractor received the request from IPD to the time the tow vehicle arrives at the location from which the tow is to be made. Said fifteen (15) minute average response time shall be computed based upon any randomly selected fifty (50) instances of calls for service. Contractor shall record pertinent times on calls received and dispatches to each tow unit by time clock method approved by the Police Chief, or his/her designee.
D. EXCUSED RESPONSE: The response time specified in this Agreement shall be extended because of any delays due to unforeseen causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, unusually severe weather, fires, earthquakes, floods, and/or acts of any governmental agency, including the City, if Contractor shall, within fifteen (15) minutes of the commencement of such delay, notify the Police Chief, or his/her designee, via telephone of the cause(s) of the delay.
The Police Chief, or his/her designee, shall ascertain the facts and the extent of the delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Police Chief, or his/her designee, such delay is justified, and the 0 l 005.0010/907463.l
Police Chiefs, or his/her designee's, determination shall be final and conclusive upon the parties to this Agreement.
E. FAILURE TO MEET RESPONSE TIMES. Failure to maintain, at all times, the Average Response Time or failure to meet the Maximum Response Time for Non-Critical Tows or the Critical Tow Time, on three or more occasions within any 365 day period, shall be a material default, constituting grounds for termination of this Agreement.
In addition, since the determination of actual damages for any .such failure would be extremely difficult or impractical to determine, in the event of any such failure to meet the maximum response time for non-critical tows or the critical tow time, Contractor and its sureties shall be liable for and shall pay to the City the sum of Three Hundred Dollars ($300) as liquidated damages for each fifteen (15) minutes of delay. Contractor shall be liable for $300 in damages for any delay less than fifteen (15) minutes.
IV. CONTRACTOR RESPONSE TO CALLS.
A. Contractor shall respond to IPD calls 24 hours a day, seven (7) days a week, within the applicable maximum response time, as described above.
B. In responding to a IPD call, Contractor shall perform the towing or service required for which Contractor was called. This requirement may be waived by the IPD officer in charge, if the requested equipment is inadequate for the service to be performed.
C. Any failure(s) to (a) respond as required; (b) meet the maximum response time requirements; or ( c) perform the required towing or service, shall constitute a default under this Agreement subject to termination.
01005.0010/907463.l
AGREEMENT FOR CONTRACT SERVICES
By and Between
CITY OF IRWINDALE
and
Royal Coaches Auto Body and Towing
AGREEMENT FOR CONTRACT SERVICES
BY AND BETWEEN THE CITY OF IRWINDALE AND
THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and entered into this _ day of , 2023 by and between the City of Irwindale, a California municipal corporation ("City") and Royal Coaches Auto Body and Towing ("Contractor"). City and Contractor are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties".
RECITALS
A. The City desires to provide its residents and businesses with the highest quality of vehicle towing and storage services when requested by the City oflrwindale Police Department ("IPD"); and
B. The City finds vehicle towing and storage services is best achieved by the granting of nonexclusive franchises to no more than two (2) vehicle towing and storage service providers since such nonexclusive franchises maximize the City's ability to regulate and oversee the quality of vehicle towing and storage services and to maintain uniform and consistent levels of services throughout the City, thus furthering the public health, safety, and well-being; and C. Pursuant to Irwindale Municipal Code ("IMC") Chapter 3.44.090, City staff issued a Request for Proposals to identify the best qualified tow service vendors and Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services; and
D. The IPD conducts the Rotation Tow Program in the City oflrwindale, whereby each Contractor who enters into a towing services agreement with the City is placed on a rotation tow listing with the IPD ("Rotational Tow Program"); and E. This Agreement contains terms and conditions with which Contractor agrees to comply in order to participate in the Rotation Tow Program and be placed on the rotation tow listing with the IPD; and
F. Participation in the IPD Rotation Tow Program is voluntary; however, compliance with all terms and conditions of the Agreement is mandatory for all tow companies participating in the IPD Rotation Tow Program. Contractor, by agreeing to participate in the program, does not establish a contractual relationship with the IPD and is not acting as an agent for the IPD or the City when performing services under this Agreement; and G. The City is authorized to enter into this Agreement pursuant to Section 608 of the City's Charter, which states that "franchises shall be granted by the City Council only in the time and manner, and for such purposes, as may be prescribed or authorized by the Constitution or by applicable laws of this State."
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONTRACTOR
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder.
As a material inducement to the City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more firstclass firms performing similar work under similar circumstances.
1.2 Contractor's Proposal.
The Scope of Service shall include the Contractor's scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Contractor shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 Licenses, Permits, Fees and Assessments.
Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. -2-
01005.0010/907462.1
1.5 Familiarity with Work.
By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer.
1.6 Care of Work.
The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence.
1. 7 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.
- 3 - 01005.0010/907462.1
l.9 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern.
ARTICLE2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed NOT APPLICABLE Dollars ($N/A) (the "Contract Sum"), unless additional compensation is approved pursuant to Section 1.8.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and ( c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance.
By submitting an invoice for payment under this Agreement, Contractor is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Contractor shall not invoice City for any duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this -4-
01005.0010/907462.1
Agreement. Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Contractor to be paid within forty-five ( 45) days of receipt of Contractor's correct and undisputed invoice; however, Contractor acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission. Review and payment by City for any invoice provided by the Contractor shall not constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver. Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
ARTICLE3. PERFORMANCE SCHEDULE
3. I Time of Essence.
Time is of the essence in the perfonnance of this Agreement.
3.2 Schedule of Performance.
Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period( s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any govermnental agency, including the City, ifthe Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding three (3) - 5 - OJ 005.0010/907462.l
years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit "D").
ARTICLE4. COORDINATION OF WORK
4.1 Representatives and Personnel of Contractor.
The following principals of Contractor ("Principals") are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally, Contractor shall utilize only competent personnel to perform services pursuant to this Agreement. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor's staff and subcontractors, if any, assigned to perform the services required under this Agreement. Contractor shall notify City of any changes in Contractor's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.
4.2 Status of Contractor.
Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Contractor, nor any of Contractor's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Contractor expressly waives any claim Contractor may have to any such rights. - 6 - 01005.0010/907462.1
4.3 Contract Officer.
The Contract Officer shall be the City's Chief of Police or such person as may be designated by the City Manager. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
ARTICLES. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City:
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(a) Commercial General Liability Insurance (Occurrence Form CGOOOl or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $2,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Contractor against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement.
(c) Automotive Insurance (Form CA 0001 (Ed 1/87) including "any auto" and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than either (i) bodily injury liability limits of $100,000 per person and $300,000 per occurrence and property damage liability limits of $150,000 per occurrence or (ii) combined single limit liability of $1,000,000. Said policy shall include coverage for owned, non-owned, leased, hired cars, and any other automobile.
(d) Professional Liability. Professional liability insurance appropriate to the Contractor's profession. This coverage may be written on a "claims made" basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Contractor's services or the termination of this Agreement. During this additional 5-year period, Contractor shall annually and upon request of the City submit written evidence of this continuous coverage. ( e) Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit "B".
5.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Contractor's insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention.
All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing ninety (90) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance - 8 - 0 I 005.00 I 0/907462.1
are cancelled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5 .1 to the Contract Officer.
No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following "cancellation" notice:
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL NINETY (90)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER NAMED HEREIN.
[to be initialed]
Contractor Initials
City, its respective elected and appointed officers, directors, officials, employees, agents· and volunteers are to be covered as additional insureds as respects: liability arising out of activities Contractor performs; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or any automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
Any deductibles or self-insured retentions J,11USt be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or persons for which the Contractor is otherwise responsible nor shall it limit the Contractor's indemnification liabilities as provided in Section 5 .3.
In the event the Contractor subcontracts any portion of the work in compliance with Section
4.5 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to Section 5 .1, and such certificates and endorsements shall be provided to City. - 9 - 01005.0010/907462.1
5 .3 Indemnification.
To the full extent permitted by law, Contractor agrees to indemnify, defend and hold harmless the City, its officers, employees and agents ("Indemnified Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses; costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable ("indemnitors"), or arising from Contractor's or indemnitors' reckless or willful misconduct, or arising from Contractor's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
( c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees.
Contractor shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Contractor shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Contractor in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City's sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Contractor and shall survive termination of this Agreement.
5 .4 Sufficiency oflnsurer.
Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating - 10 - 01005.0010/907462.1
Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City ("Risk Manager") due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the risk manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager.
ARTICLE6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Contractor shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the "books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Contractor's business, custody of the books and records may be given to City, and access shall be provided by Contractor's successor in interest. Notwithstanding the above, the Contractor shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports.
Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the "documents and materials") prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or - 11 - 01005.0010/907462.l
assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and Contractor's guarantee and warranties shall not extend to such use, reuse or assignment. Contractor may retain copies of such documents for its own use. Contractor shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. Moreover, Contractor with respect to any documents and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for the City.
6.4 Confidentialitv and Release oflnformation.
01005.0010/907462.l
(a) All information gained or work
product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b) Contractor, its officers, employees,
agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena.
( c) If Contractor, or any officer,
employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorneys fees, caused by or incurred as a result of Contractor's conduct. ( d) Contractor shall promptly notify City
should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to - 12 -
ARTICLE7.
review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, constrned and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California.
7 .2 Disputes; Default.
In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default.
This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Contractor's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other - 13 - 01005.0010/907462.1
provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services. by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Contractor shall file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Termination Prior to Expiration of Term.
This. Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this · Contract at any time, with or without cause, upon thirty (30) days' written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7 .2.
7.8 Termination for Default of Contractor.
If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7 .2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to - 14 - 01005.0010/907462.1
the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
7.9 Attorneys' Fees.
If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taldng depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NONDISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict ofinterest.
Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor's performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual - 15 - 01005.0010/907462.1
orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
8.4 Unauthorized Aliens.
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
ARTICLE9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City ofirwindale, 5050 N. Irwindale Avenue, Irwindale, CA 91706 and in the case of the Contractor, to the person(s) at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9 .2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the - 16 - 01005.0010/907462.1
City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which ( s )he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of "financial interest" shall be consistent with State law and shall not include interests found to be "remote" or "noninterests" pursuant to Government Code Sections I 091 or 1091.5. Contractor warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement.
Contractor further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Contractor is aware of and understands that any such act(s), ornission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.
Contractor's Authorized Initials ---
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]
- 17 - 01005.0010/907462.1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.
ATTEST:
Laura Nieto
Chief Deputy City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Adrian Guerra
City Attorney
CITY:
. CITY OF IRWINDALE
Julian A. Miranda
City Manager
CONTRACTOR:
Royal Coaches Auto Body and Towing
By: ______________ _
Name:
Title:
Address:
By: ______________ _
Name:
Title:
Address:
Two corporate officer signatures required when Contractor is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONTRACTOR'S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTEST A TIO NS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTOR'S BUSINESS ENTITY. - 18 - 01005.0010/907462.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On 2023 before me, personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose narnes(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in bis/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity npon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattaclnnent of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
D INDIVIDUAL
D CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
D PARTNER(S) D LIMITED
D GENERAL NUMBER OF PAGES
D ATTORNEY-IN-FACT
D TRUSTEE(S)
D GUARDIAN/CONSERVATOR
D OTHER DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES)) SIGNER(S) OTHER THAN NAMED ABOVE
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity oftbe individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On 2023 before me, , personally appeared . proved to me on tbe basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to tbe witbin instrument and acknowledged to me that he/she/tbey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrnment the person(s), or tbe entity upon behalf of which tbe person(s) acted, executed the instrument.
I certify uuder PENALTY OF PERJURY under tbe laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: ______________ _
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on tbe document and could prevent fraudulent reattachment oftbis form.
CAPACITY CLAIMED BY SIGNER
D INDIVIDUAL
0 CORPORATE OFFICER
D
D
D
D
D
TITLE(S)
PARTNER(S) 0 LIMITED
D GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER~-----------~
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
01005.0010/907462.1
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
EXHIBIT "A"
SCOPE OF SERVICES
I. SERVICES.
Pursuant to this Agreement, it shall be Contractor's responsibility to respond to all Irwindale Police Department (IPD calls for services to tow, impound, store and recover vehicles as requested by IPD, including, but not limited to the following: vehicles involved in crimes, traffic accidents, operated in a manner that violate applicable laws; vehicles impounded for evidence or taken into custody by IPD; vehicles involved in accidents or disabled for other causes (when alternative towing is either not appropriate or not requested by the owner or Contractor of the vehicle); abandoned vehicles; and vehicles which are within the jurisdiction of IPD. Contractor shall further be responsible for the removal of debris resulting from accidents and the necessary work preliminary to towing, such as removal of vehicles from ditches, righting said vehicles, separating entangled vehicles, disconnecting drive shafts, and other such work as shall be required in connection with the towing operations. This Agreement does not apply to, nor does it authorize, tows at the request of the public in either emergency or non-emergency situations. Those requests made to IPD by a private citizen for undesignated towing services will be referred to the appropriate tow provider. Contractor recognizes there will be no charge for the towing of City vehicles either to the IPD, City Yard, or to a suitable local place of repair.
Contractor shall respond to calls generated by or through the IPD, 24 hours a day, seven days a week, within the maximum response time of 15 minutes. At the time of notification, Contractor will advise dispatch when Contractor( s) are unable to respond or meet the maximum response time. IPD will refer tow services to the Contractor, on the condition that the Contractor is available to perform the services set forth in its agreement within the City. This Agreement applies to calls originating from or generated by or through IPD (collectively referred to as "calls" or "response calls"). If the Contractor is not available at the time of the request or is unable to respond within the required time, the handling officer or field supervisor may request another towing service.
In providing these services in the field, Contractor, including its agents and employees, shall conduct themselves in a safe manner and shall never, in any circumstance, act in a manner that may cause a danger to themselves or those at the scene. In no way shall the Contractor, including its agents and employees, be in any relation of dependence upon officers in performing under this Agreement and takes special note that, pursuant to Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4111 895, the City and its officers owe no duty of care to Contractor, or its agents and employees.
01005.0010/907462.1
II. TOW TRUCK CLASSIFICATIONS.
A. Contractor shall equip, repair, and maintain all tow trucks covered under this Agreement in accordance with the provisions set forth in the California Vehicle Code; Title 13 of the California Code of Regulations, and consistent with industry standards and practices. 1) Notwithstanding Vehicle Code § 615, all tow trucks shall have recovery capabilities, wheel lift capabilities, and a boom meeting the specifications contained in this Agreement. For the purpose of this Agreement, a trailer for hire that is being used to transport a vehicle shall not qualify as a primary tow truck for rotation tow lists.
2) To the extent Contractor has a car carrier, such truck(s) is/are exempted from the recovery, wheel lift, and boom capability requirements.
B. A violation of the Gross Vehicle Weight Rating (GVWR), front axle weight rating, rear axle weight rating, maximum tire weight ratings, not maintaining 50% of the tow truck's unladen weight on the front axle when lifting/carrying a load or safe loading requirements of a tow truck shall be cause for suspension of a truck used in performing under this Agreement, and may be cause for termination of this Agreement.
C. There are four classes of tow trucks covered under this Agreement. In no case shall any tow truck be rated less than one-ton capacity. (The equipment specifications for each Class of tow truck are further described in Exhibit "A-1 ".)
01005.0010/907462.1
1) Class A - Light Duty. Class A tow trucks shall have a manufacturer's GVWR of at least 14,000 to 19,500 pounds with wheel lift capabilities. In addition, the Contractor may have a car carrier. Class A equipment specifications are those established by the California Highway Patrol, as amended from time to time, and are available through the Traffic Office at the IPD.
2) Class B - Medium Duty. Class B tow trucks shall have a GVWR of at least 26,000 to 33,000 pounds. The truck shall be capable of providing air to the towed vehicle. Class B equipment specifications are those established by the California Highway Patrol, as amended from time to time, and are available at the Traffic Office of the IPD. Contractor may have a carrier, but the carrier must be an additional unit.
3) Class C - Heavy Duty. Class C tow trucks with three axles and a GVWR of at least 48,000 pounds. The truck shall be equipped with air brakes and must be capable of providing and maintaining continuous air to the towed vehicle. Class C equipment specifications are those established by the California Highway Patrol, as amended from time to time, and are available at the Traffic Office of the IPD.
4) Class D - Super Heavy Duty. Class D tow trucks with three axles and a GVWR of at least 54,000 pounds. The truck shall be equipped with air brakes and must be capable of providing and maintaining continuous air to the towed vehicle. If this class of tow truck is used exclusively for salvage and recovery operations, there is no requirement for providing and maintaining continuous air to the towed vehicle. Class D equipment specifications are those established by the California Highway Patrol, as amended from time to time, and are available at the Traffic Office of the IPD.
5) Contractor shall provide sufficient tow trucks in each of the foregoing classes of sufficient higher weight class tow truck substitutions to ensure that the Contractor responds to each call for service within the 15-minute maximum response time. It is understood that the response time for heavyduty tow vehicles may reasonably exceed the maximum response time.
III. TOW TRUCK DRIVERS.
A. Minimum licensing. Contractor shall ensure that tow truck drivers ("Drivers") responding to calls initiated by IPD are qualified and competent employees of Contractor.
Contractor shall ensure that the tow truck drivers are trained and proficient in the use of the tow truck and related equipment, including, but not limited to, the procedures necessary for the safe towing and recovery of the various types of vehicles serviced through IPD rotation. Tow truck drivers shall be at least 18 years old and possess the following minimum class driver license:
1) Class A tow truck - A valid Class C license, or a valid Class A license with valid medical certificate.
2) Class B tow truck - A valid Class C license for non-regulated vehicles, or a valid Class A license with valid medical certificate for regulated vehicles pursuant to Vehicle Code Section 34500.
3) Class C and D tow trucks - A valid Class A license with valid medical certificate.
B. Licensing. The Class A license must be endorsed to allow operation of special vehicle configurations and/or special cargoes as described in Exhibit "A-1" attached hereto and incorporated herein by reference.
C. Current Driver Listing. Contractor shall maintain a current list of drivers.
Contractor shall provide a current list of his/her drivers to IPD upon implementation of this Agreement and not less than monthly thereafter. Contractor shall emoll/participate in the Department of Motor Vehicle's Pull Notice Program. Current and new employees shall submit their California driver's license numbers to the Contractor for input into Department of Motor Vehicle's Pull Notice Program. Contractor shall notify IPD upon any change in driver status, including the addition of any new driver(s), or the deletion of any driver(s) and revocation or 01005.0010/907462. l
suspension of a driver's license. An updated list shall be provided IPD within seven (7) calendar days of any change in driver status. Contractor shall, at a minimum, maintain the following information for each employee, and provide the same to the Police Chief not less than monthly:
a. Full name.
b. Date of Birth.
c. California driver license number and expiration date. d. Copy of valid medical certificate (if required).
e. Job title/description.
f. Current home address.
g. Current home phone number.
h. Type(s) oftruck(s) driver has been trained and instructed to operate.
1. Certificate showing driver 1s California Tow Truck
Association (CTTA) trained.
D. Drivers' Appearance. Drivers must maintain a neat, clean, and professional appearance at all times. Drivers must wear a distinctive uniform bearing the Contractor's name clearly visible with shirttails tucked into the waistband of their pants.
E. Screening of Drivers. Prior to utilizing any driver to perform services under this Agreement, Contractor shall provide to the City's Chief of Police a confidential screening application for that prospective driver containing information requested by the Police Chief. The Chief of Police shall screen the prospective driver and approve or deny that driver for service under this Agreement. The Police Chief shall deny that driver ifthe Police Chief determines, in his sole discretion, that the prospective driver: a) provided false or misleading information on the application, b) has been convicted of any felony or any theft-related crime, or c) has failed or refused a drug test. Utilizing any driver before the Police Chief has completed the screening, or utilizing any driver who has been disapproved under this paragraph shall be grounds for suspending Contractor's participation in the tow rotation. If Contractor becomes aware of any driver being arrested or convicted for any felony or theft-related crime after approval by Police Chief, Contractor shall notify the City within 24 hours of such fact. The Chief of Police shall, in his sole discretion, require DOJ Live Scans for all drivers towing in the City. Contractor agrees to be responsible for all associated fees.
F. Removal of Drivers. At any time during the term of this Agreement, the Police Chief, in his or her sole discretion and with or without cause, may direct Contractor to no longer utilize a particular driver to perform services for the City under this Agreement. Such direction 01005.0010/907462.1
shall be given by written notice to Contractor. Upon receipt of such notice, Contractor shall inunediately discontinue use of the driver to perform services under this Agreement. Upon request by Contractor, the Police Chief may, in his or her sole discretion, provide written notice reinstituting the driver's eligibility to perform services for City.
IV. STORAGE OPERATIONS.
A. Contractor Responsibilities.
01005.00 I 0/907462.l
1) Contractor shall be responsible for all vehicles stored by Contractor, together with all accessories and equipment on each vehicle and all personal property in each vehicle. It shall be Contractor's responsibility to protect the stored equipment and property against loss or damage by fire, theft, weather or other causes. In the event of loss or damage to a stored vehicle, its accessories or equipment, or personal property contained in the vehicle, Contractor shall be responsible to the owner for all losses or damages.
Personal property in vehicles stored by Contractor shall not be disposed of to defray any charges for the towing or storing of a vehicle; and, if not called for by the owner within thirty (30) days after date of notice by IPD of impound or storage, all such property shall be disposed of in accordance with all State, County and Municipal laws, statutes, ordinances and regulations, including without limitation, Vehicle Code § 10652 (reporting storage of vehicles over thirty (30) days).
2) Contractor shall take all reasonable precautions as directed by IPD to avoid damage to any evidence, such as fingerprints or stains. Vehicles taken into custody that involve evidence shall be stored in a secured, locked area which is inside a structure protected against entry by unauthorized persons.
Contractor shall park all stored or impounded vehicles in such a marmer as to prevent any damage while other vehicles are being moved or parked in the vicinity of said vehicles. Vehicles held for thirty (30) days shall be secured in an inside storage area.
3) Contractor must maintain a locked and secured storage area for vehicles held for police investigation or preservation of evidence ("Police Hold Vehicles"). Police Hold Vehicles shall be placed in a secured, enclosed, inside storage area ("Inside Storage Area"). The Police Hold Vehicles Inside Storage Area shall be capable of being secured in a marmer acceptable by the Police Chief, or his/her designee, so as to assure the integrity and chain of custody of evidence or other information derived from a vehicle, which is subject to a police hold. Vehicles so stored shall not be moved, relocated, or physically touched by employees of Contractor except as authorized by the Police Chief, or his/her designee, and upon written authorization of City.
B. Storage Facilities.
1) Contractor shall maintain a vehicle storage area to impound towed vehicles large enough to accommodate all vehicles stored less than thirty (30) days.
The primary vehicle storage area must have the legal storage capacity for eighty (80) vehicles.
2) All vehicles impounded or taken into custody by IPD must be stored by Contractor in areas that are enclosed by substantial wire fences or walls that have gates or doors which lock. Such fences or wall enclosures shall be not less than six (6) feet in height and shall have not less than one (1) gate or door of adequate width and height. A fence or wall enclosures shall be maintained and repaired in good condition throughout the term of this Agreement. Such fences or walls shall be repaired within twenty-four (24) hours of the time of any damage thereto to insure proper protection of the stored vehicles. The storage area must be paved with concrete or asphalt and maintained in good condition. The Police Chief, or his/her designee, may modify security requirements necessary to coincide with local conditions.
3) The storage facility shall be open and attended from 8:00 a.m. to 5:00 p.m., Monday through Friday, and shall have a responsible person on call on a twenty-four (24) hour basis, seven (7) days a week. The designated on-call person(s) shall be available to release vehicles between 5:00 p.m. and 8:00 a.m., Monday through Friday and a twenty-four (24) hour basis on Saturday, Sunday and holidays.
C. Location And Maintenance Of Storage Facility.
01005.0010/907462.1
1) Contractor shall maintain and provide at least one place of business which is also the location of the storage facility for the vehicles stored under this Agreement within seven (10) miles from the boundaries of City, as may be modified from time to time. The business address and primary storage facility shall be located reasonably close to the police station, as determined by the Police Chief in his/her sole opinion.
2) The primary storage facility shall be at the same location as the business address. The vehicle and personal property shall be released at a primary storage facility upon request of the owner. Except with respect to Police Hold Vehicles, upon proper identification or proof of authority, the owner or his designated representative shall be permitted to remove personal effects from a stored vehicle without reference to any costs or charges pending because of towing or storage of said vehicle. Police Hold Vehicles shall not be released without the presentation of a fully executed property release form issued by the IPD, and upon compliance with this paragraph. 3) Contractor shall furnish the Police Chief, or his/her designee, with the addresses of all storage facilities whenever there is a change. 4) All storage facilities shall comply with all land use and zoning ordinances of the applicable jurisdiction in which they are located and all requirements and specifications described in this Agreement. All landscaped and paved areas of Contractor's premises shall be maintained in a neat and orderly condition with the landscape in a healthy condition and free of weeds and litter.
5) Any storage space shall be kept free of weeds, litter, debris, and any other materials or substances or any automotive parts unless said parts are stored as evidence for the Police Department. Contractor shall take all reasonable steps to prevent contamination of soil by gasoline, oil, grease, or any other hazardous substances as specified by Federal, State, County or Municipal regulations.
6) Contractor shall post not less than one outdoor sign at each storage facility, at or near the entrance thereof, identifying Contractor's name, telephone number, and the business telephone number ofIPD.
7) Unless the vehicle is subject to a police hold, as described in Section (C)(l )( c ), above, Contractor shall be able to properly conduct a lien sale as outlined in Vehicle Code § 22851.1.
V. INSPECTIONS.
IPD or, as authorized by IPD, the California Highway Patrol ("CHP") may conduct inspections at any time of all tow trucks to determine whether such tow trucks are safe and adequately equipped to perform the service required of such class level tow truck. IPD or CHP may also conduct inspections at any time of Contractor's business premises to determine whether the premises are secured and maintained according to the terms of this Agreement. IPD or CHP may conduct inspections without notice during normal business hours. Contractor shall not dispatch a tow truck (to a IPD call) that has not been inspected and approved by IPD or CHP. IPD or CHP shall inspect a tow truck within thirty (30) days of a request from Contractor. If Contractor fails an inspection for any reason (as determined in the reasonable discretion ofIPD or CHP) is entitled to only one (1) re-inspection. Failure to pass the re-inspection may be cause for disqualification of the tow truck from use in performing this Agreement.
VI. BUSINESS RECORDS.
A. Contractor shall maintain records, at its place of business, relating to tow services furnished under this Agreement. At the request ofIPD, Contractor shall furnish IPD a written list of all vehicles that have been towed by Contractor under this Agreement. Such list shall show the nature of service, description of vehicles, date of tow, tow truck drivers name, start time, end time, storage location of each vehicle, dates of storage, itemized costs of towing and storage, vehicle 01005.0010/907462.1
make and model, license number and vehicle serial number. Upon request, Contractor shall furnish IPD with an itemized list of all charges incurred.
B. Contractor shall also maintain business records relating to personnel, insurance, personnel taxes, payroll, applicable operating authorities, local operating authorities, lien sale actions, auctions, FCC and any other necessary licensing (if any), and non-IPD tows.
C. IPD may inspect all Contractor records without notice during normal business hours. Contractor shall permit IPD to make copies of business records at their place of business, or to remove business records for the purpose of reproduction. IPD shall provide a receipt for any (original) records removed from the place of business. Records shall be maintained and available for inspection for a period of two years plus the current term of this Agreement. Failure of Contractor to comply with the records requirement shall be cause for termination of this Agreement.
D. For purposes of audit by the City, Contractor shall also keep accurate records of all gross receipts earned as a result of the business conducted under the Agreement, excepting therefrom all sales and excise taxes. Receipts shall be issued to all customers. The records must be supported by source documents such as receipt slips, cash register tapes, invoices or other pertinent information. Contractor shall read and record the totals at the beginning and end of each calendar day. Such records must be available at all times and shall be subject to inspection, review and audit during the entire Agreement period by the Police Chief, or his/her designee, or City Finance Director or his representative. Such audits may be conducted at the discretion of the Police Chief, or his/her designee, or the Finance Director, either unarmounced or by appointment.
Contractor's failure to have records of all gross receipts immediately available for audit shall be cause for termination of this Agreement by City.
VII. CONDUCT AND DEMEANOR.
A. While involved in IPD requested tow operations, Contractor and/or its employees shall refrain from any act(s) of misconduct, to include, but not limited to, any of the following:
01005.0010/907462.1
1) Rude or discourteous behavior.
2) Lack of service, selective service, or refusal to provide service which Contractor is/should be capable of performing.
3) Any act of sexual harassment or sexual impropriety.
4) Unsafe driving practices.
5) Exhibiting any objective symptoms of alcohol and/or drug use. 6) Appearing at the scene of a IPD tow call with the odor of an alcoholic beverage emitting from his/her breath. Contractor/tow truck driver shall submit to a preliminary alcohol-screening test upon demand ofIPD.
B. Contractor shall not leave any tow site without cleaning the location sufficient to restore normal traffic patterns.
C. All complaints related to services under this Agreement received by IPD against Contractor (or its employees) will be accepted and investigated in a fair and impartial manner by IPD with the full cooperation of Contractor. Contractor will be notified of the results of any investigation before any action is taken.
VIII. COMPLIANCE WITH LAW.
A. Contractor, and its employees, shall, at all times, be knowledgeable of, and comply with, all Federal, State, and local laws and ordinances, which include, but are not limited to, those laws which are applicable to Contractor as promulgated by the California Department of Transportation, the California Highway Patrol, and industry practices endorsed by the California Tow Truck Association. Contractor shall retain an adequate number of trained and properly licensed and permitted (as required by Vehicle Code§ 12520) personnel assigned to perform the work described in this Agreement.
1) In the event of a traffic violation of any kind by Contractor's tow truck driver(s) which is/are known by IPD, Contractor shall be advised of the violation(s) by IPD. Except as provided below, Contractor will be granted the opportunity to take necessary steps to ensure that the same or similar violation does not reoccur. Any subsequent traffic violation(s) may be cause for termination of this Agreement.
b) Any traffic violation( s) chargeable as a felony, or a traffic violation involving drugs or alcohol (e.g., driving under the influence of drugs or alcohol) or driving on a suspended or revoked license, shall be cause for termination of this Agreement.
B. The provisions contained herein do not preclude IPD from taking appropriate enforcement or administrative action for any violations oflaw.
C. Any conviction of Contractor, or any of its agents, employees or officers, involving a stolen or embezzled vehicle, fraud related to the towing business, stolen or embezzled property, a crime of violence, a drug related offense, felony or misdemeanor driving while under the influence of alcohol and/or a drug, whether or not in connection with the performance of this Agreement or not, shall be cause for termination ofthis Agreement.
IX. INVENTORY OF VEHICLE CONTENTS. ·
A detailed written inventory of all personal property in any vehicle which is towed and stored or towed and impounded will be completed by the Police Department employee requesting Contractor's services, and the tow Contractor shall complete the appropriate section on the Police Department's form and shall sign said form. A copy of said signed form shall be given to the tow truck driver and shall be retained by Contractor. Whenever any item is removed from a stored 01005.0010/907462.1
vehicle and taken to another place of storage, Contractor shall provide a receipt, with a copy placed in the stored vehicle and a copy given to the Police Department.
X. SERVICE COMPLAINTS.
Contractor shall post a notice in a conspicuous place at Contractor's place of business of a size which is at least 8 1/2" x 11" informing the public of the right to make complaints regarding service provided by Contractor, and shall include the name and location where complaints can be made to City. Contractor shall notify IPD, in writing, within seventy-two (72) hours of any complaints made to Contractor regarding the performance of service in connection with towing or storage, or concerning rates, charges of foes, or any claims, or any legal actions filed, delivered or served upon or instituted against Contractor or any of its agents, officers or employees.
XI. ADVERTISING.
Contractor shall not display any sign or engage in any advertisement indicating an official or unofficial connection with IPD or the Department of Motor Vehicles. Examples of prohibited signage include, without limitation, "Official IPD Tow," "Approved by IPD," "IPD Tow." The provisions under this Section shall not preclude the Police Chief, or his/her designee, from implementing a system to mark and identify particular tow trucks as having passed IPD inspection. 01005.0010/907462.l
EXHIBIT "A-1"
EQUIPMENT SPECIFICATIONS AND USE REQUIREMENTS
I. GENERAL EQUIPMENT SPECIFICATIONS AND USE EQUIPMENT
A. Tow Truck and Car Carrier Classifications: Tow truck and car earner classifications are based on the truck chassis GVWR, and the classification system used by the American Trucking Association (ATA) and truck manufacturers.
AT A and Manufacturers Classification
a. Class 3 - 10,000-14,000 lbs. GVWR
b. Class 4- 14,001-16,000 lbs. GVWR
c. Class 5 - 16,001-19,500 lbs. GVWR
d. Class 6 - 19,501-26,000 lbs. GVWR
e. Class 7 - 26,001-33,000 lbs. GVWR
f. Class 8 - 33,001 lbs.-or more GVWR
CHP Classification
(Class A Tow Trucks)
(Class A Tow Trucks)
(Class A Tow Trucks)
(Class B Tow Trucks)
(Class B Tow Trucks)
(Class B Tow Trucks)
B. Equipment Limitations. All towing equipment, recovery equipment, and carrier ratings are based on structural factors only. Actual towing, carrying, and recovery capacity may be limited by the capacity of the chassis and the optional equipment selected.
C. Towing Limitations
1) The total weight of the truck, including the lifted load, shall fall within the GVWR and not exceed either the front axle weight ratings (FA WR) or rear axle weight ratings (RA WR).
2) The truck must meet all applicable state and/or federal standards. 3) The front axle load must be at least 50% of its normal or unladen weight after the load is lifted.
D. Identification Labels. Each piece of towing equipment shall have a label or identification tag permanently affixed to the equipment in a prominent location to identify the manufacturer, serial number, model, and rated capacity.
E. Recoverv Eauinment Rating. The basic performance rating of the recovery equipment is the weight the equipment can lift in a winching mode, when the boom is static at a 30 degree elevation with the load lines vertical and the lifting cables sharing the load equally, measured with a live load (weight or load cell). 01005.0010/907462.1
1) The structural design of the recovery equipment must have a higher load capacity than the performance rating(s).
2) Winches shall conform to or exceed the specifications set forth by the Society of Automotive Engineers (SAE) Handbook, SAE J706. 3) All ratings for cable and chain assemblies are for the undamaged assembly condition. All cable and chain assemblies should be the same type, construction, and rating as specified by the original equipment manufacturer (OEM) for the equipment.
F. Safety Chains. Safety chains shall be rated at no less than the rating specified by the OEM.
1) Two safety chains shall be used for vehicles being towed. The safety chains shall be securely affixed to the truck bed frame or wrecker boom, independent of the towing sling, bar or hitch, wheel lift, or underlift towing equipment. The towed vehicle shall be secured to the towing equipment independent of the safety chains by either two chains or two straps. 2) Vehicles being transported on slide back carriers shall be secured by four tie-down chains or straps independent of the winch or loading cable. 3) All safety connections and attachments shall have a positive means of sufficient strength, to ensure that the safety connection or attachment cannot become disengaged while in transit.
G. Control/Safety Labels. All controls shall be clearly marked to indicate proper operations, as well as any special warnings or cautions.
H. Signs. All tow trucks shall display signs on both sides containing Contractor's company name, business address, and telephone number. The signs shall be permanently affixed and in compliance with the requirements of Section 27907 of the Vehicle Code.
I. Wire Rope (Cable). Wire rope shall be maintained in good condition. Only wire rope with swaged ends, wedge locks, or braided ends, with metal sleeves in the loops, shall be approved for use as approved by the CHP. Wire rope is not in good condition when it is stranded, knotted, crushed, excessively rusty, kinked, badly worn, when there are 12 or more wires broken in lay length, or where there is other visible evidence ofloss of strength.
II. TOW TRUCK CLASSIFICATIONS AND EQUIPMENT SPECIFICATIONS A. Class A Tow Truck Minimum Equipment Specifications:
I) 10,000 pound GVWR chassis.
2) 4-ton recovery equipment rating.
3) Hydraulic or mechanical winch( es).
01005.0010/907462.1
4) 100 ft. 3/8" x 19 cable or original equipment manufacturer's (OEM) specifications.
5) Tow chains, 5/16" alloy or OEM specifications, J/T hook assembly. 6) Safety chains, 5/16" alloy or OEM specifications.
7) Tow sling rating 3,000 pounds, when equipped.
8) Wheel lift safety straps or equivalent mechanical device. 9) All required wheel safety straps, or equivalent wheel retention device, tiedown straps, and safety chains shall be used during towing operations. 10) Tow dolly.
11) One 3-ton snatch block.
12) Wheel lift rating- retracted 3,000 pounds.
B. Class A Car Carrier - One Car Minimum Equipment Specifications 1) 10,000 pound GVWR chassis.
2) Hydraulic or mechanical winch.
3) 50 ft. 3/8" 6 x 19 cable or OEM specifications.
4) J/T hook loading bridle/chains.
5) Safety chains, 5/16" alloy or OEM specifications; four safety chains for the vehicle being transported.
6) All required tie-down straps and safety chains shall be used as required during towing operations.
C. Class A Car Carrier - Two Cars Minimum Equipment Specifications 1) 16,001 pound GVWR chassis.
2) Hydraulic or mechanical winch.
3) 50 ft. 3/8" 6 x 19 cable or OEM specifications.
4) J/T hook loading bridle/chains.
5) Safety chains 5/16" alloy or OEM specifications; four safety chains for the vehicle being transported and two safety chains for the vehicle being towed. 6) All required tie-down straps and safety chains shall be used during towing operations.
D. Class B Tow Truck Minimum Equipment Specifications
1) 19,501 pound GVWR chassis.
2) Air brakes or hydraulic w/air hookup package.
3) 14-ton recovery equipment rating.
4) Hydraulic or mechanical winch( es).
5) 150 ft. 7/16" 6 x 10 cable or OEM specifications.
6) Tow chains, 1/2" alloy or OEM specifications.
7) Safety chains, 1/2" alloy or OEM specifications.
8) Tow sling rating 7,000 pounds.
9) Two 8-ton snatch blocks.
10) Wheel lift safety straps or equivalent mechanical device. 01005.0010/907462.1
11) All required wheel safety straps, or equivalent wheel retention device, tiedown straps, and safety chains shall be used during towing operations. 12) Wheel lift or under lift rating - retracted, I 0,000 pounds.
E. Class B Car Canier Minimum Equipment Specifications
I) 19,501 pound GVWR chassis.
2) Hydraulic or mechanical winch.
3) 50 ft. 3/8" 6 19 cable or OEM specifications.
4) J/T hook loading bridle/chains.
5) Safety chains, 5/16" alloy or OEM specifications; four safety chains for each vehicle being transported and two safety chains for the vehicle being towed.
6) All required tie-down straps and safety chains shall be used during towing operations.
F. Class C Tow Truck Minimum Equipment Specifications
1) 33,000 pound GVWR chassis.
2) Air brakes w/air hookup package and single control compressor. 3) 25-ton recovery equipment rating.
4) Hydraulic or mechanical winch( es).
5) 200 ft. 5/8" 6 x 19 cable or OEM specifications.
6) Tow chains, 5/8" alloy or OEM specifications.
7) Safety chains, 5/8" alloy or OEM specifications.
8) Tow sling rating 12,000 pounds.
9) Two 12 ton snatch blocks.
10) Under lift rating-retracted, 25,000 pounds.
G. Class D Tow Truck Minimum Equipment Specifications
1) 50,000 pound GVWR chassis.
2) Air brakes w/air hookup package.
3) 30-ton recovery equipment rating.
4) Hydraulic or mechanical winch( es).
5) 250 ft. 3/4" 6 x 19 cable or OEM specifications.
6) Tow chains, 5/8" alloy or OEM specifications.
7) Safety chains, 5/8" alloy or OEM specifications.
8) Tow sling rating 20,000 pounds.
9) Two 12-ton snatch blocks.
10) Under lift rating - retracted, 32,000 pounds.
01005.0010/907462.1
III. AUXILIARY EQUIPMENT
A. Required Equipment All Classes
1) Extension - Brake and tail lamps.
2) Fire Extinguisher (Approved 4-B, Crating or better). 3) Flashlight.
4) Broom.
5) Shovel.
6) Wrecking bar (large pry bar).
7) Reflective triangles.
8) Equivalent of six 30-minute flares.
9) Covered trans can( s) with absorbent.
10) Shop rags and/or paper towels.
11) Shop to truck communications (C/B and cellular phones excluded).
B. Service and Other Equipment (For service calls, each tow truck shall be equipped with the following service eguipment):
1) Adequate emergency supply of fuel in an approved container. 2) Booster battery or hot box starting system.
3) Hydraulic jack capable of handling passenger cars and light trucks. 4) Metric and standard lug wrenches.
5) Rubber mallet/hub cap tool.
6) Lockout tools.
7) Motorcycle straps (Class A only).
8) Sledge hammer.
9) Tool kit may include:
(a) Assorted open end wrenches; standard 1/4" - 7/8" and Metric, 6- 19mm.
(b) Assorted screwdrivers; Straight blade, Phillips and Torx. ( c) Crescent wrench.
( d) Ball peen hammer.
(e) Pliers.
(f) Battery and terminal cleaning tools.
(g) Mechanic's wire.
(h) Plastic electrical tape/duct tape.
(i) Tire valve core tool.
(j) Miscellaneous fuses.
(k) Small pry bar.
(1) Socket Sets; 1/4" - 1" and 6-19 mm.
(m) Ratchet and extensions.
01005.0010/907462.1
C. Class A Required Equipment
1) One 3-ton rated snatch block.
2) Towing sling - J/T hook tow chain assembly, a 4" x 4" x 48" and a 4" x 4" x 60" wooden crossbeam, a pair of spacer blocks, a steering wheel clamp, a towing dolly, and safety chains.
3) Wheel lift - Wheel safety straps or equivalent mechanical device, steering wheel clamp, towing dolly, and safety chains.
4) Car carrier - J/T Hook loading bridle, a 4" x 4" x 48" and 4" x 4" x 60" wooden crossbeam, a pair of spacer blocks, and two pairs of safety chains.
D. Class B Required Equipment
I) Towing sling - JIT hook tow chain assembly, a 4" x 4" x 48" and a 4" x 4" x 60" wooden crossbeam, a pair of spacer blocks, a steering wheel clamp, a towing dolly, and safety chains.
2) Wheel lift - Wheel safety straps or equivalent mechanical device, steering wheel clamp, towing dolly, and safety chains.
3) Truck hitch - Tow chain assembly, 4" x 4" x 60" and 6" x 6" x 60" wooden crossbeams (as necessary), aluminum tow angle(s), and safety chains. 4) Under lift - Assortment of lift forks/adapters, safety tie-down chains, and safety chains.
(a) Two 8-ton rated snatch blocks.
(b) Air hoses and necessary fittings to provide air to the towed vehicle.
E. Classes C and D Required Equipment
01005.00101907462. l
1) Towing sling - Tow chain assembly, 4" x 4" x 60" and 6" x 6" x 60" wooden crossbeam, a pair of spacer blocks, a steering wheel clamp, and safety chains.
2) Truck hitch - Tow chain assembly, 4" x 4" x 60" and 6" x 6" x 60" wooden crossbeams (as necessary), aluminum tow angle(s), and safety chains. 3) Under reach - Assortment of lift forks/adapters, safety tie-down chain(s), and safety chains.
(a) Steering wheel clamp.
(b) Two 12-ton rated snatch blocks.
( c) Air hoses and necessary fittings to provide air to the towed vehicle.
EXHIBIT "B"
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
I. Section 2.1, "Contract Sum,'' is hereby amended and shall now read as follows:
"2.1 Contract Sum. Contractor shall receive no compensation from the City in connection with this Agreement. For the Services rendered pursuant to this Agreement, the Contractor shall be permitted to participate in the City's Rotation Tow Program, for which Contractor may become eligible to collect certain charges and fees for services rendered from the persons who receive those services. In no event shall Contractor be paid by, or become eligible for payment directly from, the City. The schedule of fees and charges, including those charges that must be collected by Contractor for the benefit of the City, are included in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. This Agreement further requires that Contractor shall attend all project meetings reasonably deemed necessary by the City, and Contractor shall not be entitled to any additional compensation for attending said meetings."
II. Section 2.2, "Method of Payment,'' is hereby amended and shall now read as follows:
"2.2 Method of Payment. Contractor understands and accepts that it is Contractor's obligation and sole responsibility to collect any of Contractor's fees for towing and storage including but not limited to, vehicles stored or impounded for State law violations, and any other fees provided for under this Agreement. Contractor shall not charge any fees in excess of the fees approved by the City Council. Contractor shall not collect or be entitled to any City vehicle release fees imposed by the City." III. Section 2.3, "Reimbursable Expenses,'' is hereby deleted and is hereby replaced with the following section entitled "Franchise Fees" which shall read as follows:
"2.3 Franchise Fees. The Contractor shall pay a fee to the City in consideration for its permitting Contractor to participate in the Rotation Tow Program. Contractor shall pay City a monthly franchise fee ("Franchise Fee") of TWO THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($2,250) as compensation to provide services for the Rotational Tow Program. Payment of the Franchise Fee must be submitted to City within 15 days following the previous month. Failure to remit the fees in a timely manner is grounds for suspension and/or revocation of any award of Contract by City in its sole discretion. The purpose of the fee is to offset the City costs to monitor the Tow Rotation Program, periodically audit and inspect records, administrate complaints, and other administrative duties that otherwise would be borne entirely by the City. The amount of the Franchise Fee has been determined to not exceed the amount reasonably necessary to reimburse the City for its actual and reasonable costs incurred in connection with the 01005.0010/907462. l
program. (Reference California Vehicle Code section 12110.) The Franchise Fee may be renegotiated annually between the City and the Contractor in good faith, as the City determines that adjustments of the fee are necessary, if actual costs for administration of the towing program exceeds or otherwise varies from the estimated costs upon which this Agreement is based.
IV. Section 2.4, "Invoices," is hereby deleted.
V. Section 2.5, "Waiver," is hereby deleted.
VI. Subsection d, "Professional Liabilitv," of Section 5.1, "Insurance Coverages," is hereby deleted.
VII. Section 5.5, "Additional Insurance Requirements" is hereby added and shall read as follows:
"5.5 Additional Insurance Requirements. In addition to the requirements in Section 5.0 of this Agreement, Contractor shall maintain at least the following minimum levels of insurance from an insurance carrier admitted in California, in a form and content satisfactory to City:
(a) Commercial Business Automobile Liability as required by Vehicle Code§ 16500.5. Bodily injury and property damage with a combined single limit of not less than $1,000,000 for each class of tow trucks. These minimum standards are to include non-owned and hired auto coverage.
(b) On-Hook Coverage/Garage Keepers Legal Liability. Insuring the vehicle in tow with limits based on the size of the tow truck.
Class A tow truck
Class B tow truck
Class C tow truck
Class D tow truck
$50,000
$75,000
$150,000
$150,000
( c) Garage Liability insurance, including premises and operations coverage for bodily injury and property damage with a combined single limit of not less than $1,000,000."
VIII. Section 7.3, "Retention of Funds," is hereby deleted.
IX. Section 7.8, "Termination for Default of Contractor," is hereby amended and shall now read as follows:
"7.8 Termination of Contractor With Cause or Removal from Rotation List.
Contractor may be terminated/removed from the rotation list at any time with or without 01005.0010/907462.1
cause by the City. If the Agreement is terminated with cause, the following provisions shall apply:
(a) The Police Chief, or his/her designee, shall be authorized to take action against Contractor for violations of this Agreement investigated and confirmed or sustained up to and including termination of this Agreement. (b) Overcharging by Contractor shall be cause for termination of this Agreement in the sole discretion of the Police Chief, or his/her designee. ( c) Failure by Contractor to respond to calls as required, meet the Maximum Response Time requirements, meet the Average Response Time on a regular basis, or perform the required towing or service as required by this Agreement shall be cause for termination of this Agreement in the sole discretion of the Police Chief, or his/her designee.
( d) Failure of Contractor to maintain the minimum insurance requirements as set forth in the Agreement shall be cause for termination of this Agreement in the sole discretion of the Police Chief, or his/her designee. (e) A violation of the Biennial Inspection of Terminals (BIT) Program requirements shall be cause for termination of this Agreement. (f) Failure of Contractor, its employees, or its agents to maintain professional conduct becoming of a representative of the City, in the sole discretion of the Police Chief, shall be cause for termination of this Agreement." 01005.0010/907462.1
EXHIBIT "C"
SCHEDULE OF COMPENSATION
I. The approved rate structure for all towing, storage and related services requested by IPD as described under Section 2.3 Additional Services or for eligible requested services is described herein. Contractor agrees to perform the services described herein to become eligible to receive, as full payment for services rendered, the fees described herein. If Contractor charges rates above those approved by the City, Contractor shall be in violation of the Agreement and subject to termination.
A. RATES.
The towing and storage rates charged by Contractor shall not exceed the rates charged by the California Highway Patrol ("CHP") in Los Angeles County. Should there be a dispute regarding the fees and charges for towing and/or storage of vehicles or other charges, said dispute shall be decided by thePolice Chief or his/her designee. Such decision by the Police Chief or his/her designee shall be final and binding upon Contractor; and Contractor shall not make any demand upon the owner of the vehicle for a sum in excess of the amount determined by the Police Chief or his/her designee. Contractor may request a rate increase if such increase is consistent with and does not exceed the rates charged in the CHP in Los Angeles County, however, any rate increase shall be subject to the approval of the City's Police Chief who may, in his sole discretion, approve or deny any request.
Owners of vehicles towed by order or request of the IPD are responsible for all services, whether regular or special, associated with the towing service. Contractor shall provide itemized bills, distinctively showing charges for all classifications of services, including the charges for late payment. Neither City nor IPD will be responsible or liable for any costs of towing services in the event that the vehicle owner refuses or is unable to pay for the services.
The following rate structure shall apply for all towing and storage services requested by City through IPD and shall be applicable for the term of the Agreement:
1) LIGHT DUTY TOWING RATE: $175.00 PER HOUR
(1 Hour Minimum)
The base rate per tow shall apply to all towed passenger vehicles and trucks rated at less than 10,000 lbs. gross vehicle weight. This rate also applies to difficult removal work involving the removal of vehicles from deep ditches or flood control channels or burning apart of two entangled vehicles.
2) MEDIUM DUTY TOWING RATE: $175.00 PER HOUR
(1 Hour Minimum)
01005.0010/907462.1
The two (2) axle category shall apply to all towed vehicles with a rate capacity of 10,000 lbs. gross vehicle weight to, but not including, vehicles with 30,000 lbs. gross vehicle weight.
3) HEAVY DUTY TOWING RATE: $175.00 PER HOUR
(I Hour Minimum)
The three (3) axle hourly rate shall apply to all towed vehicles with a rate capacity of 30,000 pounds gross vehicle weight or more.
The hourly rate for medium and heavy duty towing (two and three axle) shall commence when the tow truck arrives on the scene and includes difficult removal work involving the removal of vehicles from deep ditches or flood control channels, burning apart two entangled vehicles, uprighting overturned vehicles, and the use of special equipment and preparation prior to towing.
4) CITY VEHICLE: NO CHARGE
Contractor agrees that it shall, at no charge, tow such City vehicles as may be requested by IPD from time to time.
5) STORAGE: (Per Day)
(a) Automobiles $55.00 Per Day/Per Unit
(b) Motorcycles $55.00 Per Day/Per Unit
(c) Trucks, under twenty feet (20') $55.00 Per Day/Per Unit (d) Trucks, over twenty feet (20') $45.00 - 55.00 Per Day/Per Unit
The above standard rates apply per vehicle for storage per twenty-four hour period, or any portion thereof. Contractor shall free of charge tow all vehicles designated for sale in connection with an asset forfeiture proceeding.
6) LOCK-OUTS.
When requested by IPD to assist with a lock-out (e.g., with the use of a "slimjim" or similar device), Contractor may charge up to$ 45.00 where no towing services are provided. 7) ADDITIONAL CONDITIONS:
(a) Above towing charges shall apply regardless of the location from which the tow is made or the location of the storage area or garage where the vehicle is delivered.
Such towing charges shall include clearing and cleanup of accident site, as required by IPD. 01005.00101907462.1
(b) There shall be no additional charge for righting an overturned passenger car or light pickup truck, if towing is involved. ( c) There shall be no additional charge for disconnecting a drive shaft where required for towing.
( d) The service of reconnecting the drive shaft, in the event such reconnecting is necessary, shall be performed without additional charge.
B. POSTING RATE SCHEDULE.
1) POSTING RA TE SCHEDULES: Contractor shall post and maintain a sign or signs which have received the approval of the Police Chief, or his/her designee, in a conspicuous place or places on Contractor's premises, in a location designated by the Police Chief, or his designee, which gives notice of:
(a) The approved Rate Schedule for towing and storage services under this Agreement, and
(b) The method of payment( s) which are acceptable, which include credit cards and U. S. currency, and
( c) The requirement stating that a written receipt shall be supplied by Contractor for amount of payment received, and
( d) The telephone number and address of the Police Chief, or his/her designee.
01005.0010/907462.1
EXIDBIT "D"
SCHEDULE OF PERFORMANCE
I. TERM.
In accordance with Section 3.4 ohhis Agreement, and unless earlier terminated in accordance with Section 7. 8 of this Agreement, this Agreement shall continue in full force and effect for a period of three (3) years from the date ohhis Agreement. The City shall have the option to extend this Agreement on or before the expiration, for up to two (2) one year periods, or any portion thereof. In the event the City exercises the option to extend, all terms shall remain the same, except that (i) the service charges (Exhibit "B") may be renegotiated between the City and Contractor in good faith, and (ii) the City may impose any additional conditions necessary to improve service to the public. If the City exercises its option( s) under this provision, Contractor understands and agrees that any additional conditions must be approved in writing by the City Council.
II. ROTATING CALL LIST.
A. City shall use its best efforts to assign requests for towing services to Contractor on a rotating basis between Contractor and all other towing companies holding tow franchises with the City. Each call for service will be considered one turn on the rotation, regardless of the number of vehicles towed from the scene, and the Contractor shall be moved to the bottom of the list. The Contractor will send the appropriate number of trucks to handle the call for service, unless unable to do so, in which case Section II.A.2 of this Exhibit "D" below shall apply. City, in its sole and absolute discretion, reserves the right to place a request for towing or storage services out of rotation under any of the following circumstances:
1) At the sole discretion of the Contract Administrator for Contractor's failure to perform or in the Contract Administrator's opinion that Contractor is unable to perform; 2) There is a multiple vehicle accident that exceeds the capacity of Contractor on-call at such time;
3) Contractor is unable to respond in a timely manner as set forth in Section III of this Exhibit "A" below;
4) Failure of Contractor to make any payments as required by this Agreement; and/or
5) Failure of Contractor to remove an employee from his/her service of City calls after City requests the removal of said employee from servicing City's tow and/or storage requests.
B. City shall use its best efforts to assign requests for towing services in connection with the abandoned vehicle abatement program to Contractor on a rotating basis between Contractor and all other towing companies holding tow franchises with the City. Each call for 01005.0010/907462.l
service will be considered one turn on the rotation and will be limited to one (1) towed vehicle per call. Upon completion of said towing services, Contractor shall be moved to the bottom of the list.
C. Subject to the power and authority of City, as provided by law and in accordance with this Agreement, City shall in all cases, in its sole and absolute discretion, determine the quantity, quality, and acceptability of the services provided under this Agreement. City shall, in its sole and absolute discretion, decide any questions that might arise relative to the fulfillment of this Agreement or to the obligations of the Contractor hereunder.
III. RESPONSE TIMES.
All services shall be performed in a timely manner, and in no event shall the level of service or response time fail to meet the following requirements.
A. MAXIMUM RESPONSE TIME FOR CRITICAL TOWS: Contractor shall respond to IPD calls for Critical tow circumstances (traffic collisions, impounds, hazards, road blockages) within fifteen (15) minutes from the time the Contractor receives the request to the time the tow vehicle arrives at the location from which the critical tow is to be made. In no event shall the response time exceed fifteen (15) minutes for a critical tow.
B. MAXIMUM RESPONSE TIME FOR NON-CRITICAL TOWS: In no event shall the response time exceed twenty (20) minutes for a non-critical tow. Notwithstanding the foregoing, if Contractor's dispatcher, at the time the call is placed, notifies IPD that a tow unit cannot respond within the maximum response time and gives, in the sole and absolute discretion of the Police Chief, or his/her designee, a reasonable cause therefore, which is beyond the control and without the fault or negligence of Contractor, then Contractor will not be deemed to have failed to respond to a call for service and the Police Chief, or his/her designee, shall have the right to contact another tow truck services company, and cancel the call for service.
C. A VERA GE RESPONSE TIME: The Contractor's response to calls from IPD for towing service shall not exceed an average of fifteen (15) minutes (for both critical and non-critical calls combined) from the time the Contractor received the request from IPD to the time the tow vehicle arrives at the location from which the tow is to be made. Said fifteen (15) minute average response time shall be computed based upon any randomly selected fifty (50) instances of calls for service. Contractor shall record pertinent times on calls received and dispatches to each tow unit by time clock method approved by the Police Chief, or his/her designee.
D. EXCUSED RESPONSE: The response time specified in this Agreement shall be extended because of any delays due to unforeseen causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, unusually severe weather, fires, earthquakes, floods, and/or acts of any governmental agency, including the City, if Contractor shall, within fifteen (15) minutes of the commencement of such delay, notify the Police Chief, or his/her designee, via telephone of the cause(s) of the delay.
The Police Chief, or his/her designee, shall ascertain the facts and the extent of the delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Police Chief, or his/her designee, such delay is justified, and the 01005.0010/907462. I
Police Chiefs, or his/her designee's, determination shall be final and conclusive upon the parties to this Agreement.
E. FAILURE TO MEET RESPONSE TIMES. Failure to maintain, at all times, the Average Response Time or failure to meet the Maximum Response Time for Non-Critical Tows or the Critical Tow Time, on three or more occasions within any 365 day period, shall be a material default, constituting grounds for termination of this Agreement.
In addition, since the determination of actual damages for any such failure would be extremely difficult or impractical to determine, in the event of any such failure to meet the maximum response time for non-critical tows or the critical tow time, Contractor and its sureties shall be liable for and shall pay to the City the sum of Three Hundred Dollars ($300) as liquidated damages for each fifteen (15) minutes of delay. Contractor shall be liable for $300 in damages for any delay less than fifteen (15) minutes.
IV. CONTRACTOR RESPONSE TO CALLS.
A. Contractor shall respond to IPD calls 24 hours a day, seven (7) days a week, within the applicable maximum response time, as described above.
B. In responding to a IPD call, Contractor shall perform the towing or service required for which Contractor was called. This requirement may be waived by the IPD officer in charge, if the requested equipment is inadequate for the service to be performed.
C. Any failure(s) to (a) respond as required; (b) meet the maximum response time requirements; or ( c) perform the required towing or service, shall constitute a default under this Agreement subject to termination.
01005.0010/907462.1
121City Council
DSuccessor Agency
DHousing Authority
D Reclamation Authority
DJoint Powers Authority
Date: July 26, 2023
City of
IRWINDALE
AGENDA REPORT
CC Item 5
To: Honorable Mayor and Members of the City Council
From: Julian A. Miranda, City Manager
Issue: Second Reading for the following Ordinances:
Ordinance No. 771
City Manager's Recommendation:
That the City Council adopt on second reading Ordinance No. 771 entitled: "AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE APPROVING DEVELOPMENT AGREEMENT NO. 01-2022 BETWEEN CITY OF IRWINDALE AND
KBS HOLDCO LLC, OBA REGENCY OUTDOOR ADVERTISING, TO ALLOW FOR
THE DIGITAL CONVERSION OF AN EXISTING STATIC BILLBOARD LOCATED AT THE INTERSECTION OF THE 1-605 (NORTHBOUND) AND THE 1-210 (EASTBOUND) FREEWAYS (APN: 8533-009-014) IN THE M-2 (HEAVY MANUFACTURING) ZONE
SUBJECT TO THE CONDITIONS AS SET FORTH HEREIN AND MAKING FINDINGS IN SUPPORT THEREOF; AND FINDING THE PROJECT EXEMPT FROM THE PROVISIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT" Administrative Actions:
Submitted by:
Marilyn Simpson, Community Development Director
(626) 430-2209
Prepared by:
Martin Romero, Planning Technician
Reviewed by:
Adrian R. Guerra, City Attorney
Kambiz Borhani, Finance Director I City Treasurer
Approved by:
Julian A. Miranda, City Manager
Electronically Approved
Electronically Approved
BACKGROUND AND ANALYSIS:
At its meeting of July 12, 2023, the City Council introduced the above ordinance for first reading. The ordinance is attached and it would be in order to adopt Ordinance No. 771 on second reading for Development Agreement No. 01-2022.
FISCAL IMPACT
The Development Agreement application is deposit-based and therefore does not have a negative impact on the City's General Fund. An annual development fee has been made part of the agreement that will generate Seventy Thousand Dollars ($70,000) to the City of Irwindale per year (representing $35,000 per digital display).
ATTACHMENTS
Attachment A: Ordinance No. 771
ATTACHMENT "A"
ORDINANCE NO. 771
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE APPROVING DEVELOPMENT AGREEMENT NO. 01-2022 BETWEEN CITY OF IRWINDALE AND
KBS HOLDCO LLC, OBA REGENCY OUTDOOR ADVERTISING, TO ALLOW FOR
THE DIGITAL CONVERSION OF AN EXISTING STATIC BILLBOARD LOCATED AT THE INTERSECTION OF THE 1-605 (NORTHBOUND) AND THE 1-210 (EASTBOUND) FREEWAYS (APN: 8533-009-014) IN THE M-2 (HEAVY MANUFACTURING) ZONE
SUBJECT TO THE CONDITIONS AS SET FORTH HEREIN AND MAKING FINDINGS IN SUPPORT THEREOF; AND FINDING THE PROJECT EXEMPT FROM THE
PROVISIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
A. RECITALS.
WHEREAS, Andrew Goodman, on behalf of KBS Holdco, LLC, dba Regency Outdoor Advertising (the "Applicant"), has made a request for approval of a Development Agreement (Exhibit A) to allow the conversion of an existing static billboard into a digital display billboard along Interstate 210 (1-210) Freeway just east of the intersection with Interstate 605 (1-605) Freeway in Irwindale, APN: 8533-009-014 ("Subject Property"). The proposed Development Agreement allows the applicant to either keep the parallel panel configuration or to rearrange the panel configuration into a "V' shaped panel configuration. If structurally feasible, the digital billboard panels will be placed on the existing support structure, otherwise, the existing structure will be demolished and a new support structure will be installed. Any new support structure will not increase the height of the existing structure. The digital billboard will have a total height of 85 feet from the ground and will stand no more than 65 feet above the freeway grade, due to a grade difference; and
WHEREAS, the Subject Property is zoned M-2 (Heavy Manufacturing). Per Irwindale Municipal Code (IMC) section 17.72.030, the repair, replacement, or new installation of a static or digital billboard requires the approval of a Development Agreement with appropriate standards and public benefits to be negotiated with the City and complying with all other standards imposed by the IMC; and WHEREAS, pursuant to the authority and criteria contained in the California Environmental Quality Act (CEQA) of 1970, as amended, and the City of Irwindale environmental guidelines, the City, as the Lead Agency, has analyzed the project and has determined that the Project is Categorically Exempt from the provisions of CEQA pursuant to Section 15303 (Class 3; New Construction or Conversion of Small Structures) and no further review is required. Also, the City has determined that this project will not have, either individually or cumulatively, an adverse impact on fish and wildlife resources.
Subject to approval of the project by the City Council based on a recommendation by the Planning Commission, a Notice of Exemption will be filed with the office of the RegistrarRecorder/County Clerk, County of Los Angeles; and WHEREAS, on June 21, 2023, the Planning Commission conducted a duly noticed 1 Development Agreement No. 01-2022
Ordinance No. 771
public hearing, at which time they received a presentation from staff; opened the public hearing and heard testimony from the Applicant and the public; closed the public hearing; and discussed the Proposed Project; and, after discussion and consideration of substantial evidence including the testimony, staff report, and all attachments thereto, approved and adopted Resolution No. 818(22) recommending that the City Council approve Development Agreement No. 01-2022; and
WHEREAS, on July 12, 2023, the project was scheduled before the City Council as a duly noticed public hearing, at which time they received input from staff, the City Attorney, and Applicant; heard public testimony; discussed the Proposed Project; closed the public hearing; and, after discussion, conducted a first reading of this Ordinance approving Development Agreement No. 01-2022; and
WHEREAS, on July 26, 2023, the City Council duly approved and adopted on second reading, Ordinance No. 711; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE DOES ORDAIN AS FOLLOWS:
SECTION 1. The City Council finds that all of the facts set forth in Recitals, Part A, of this Ordinance are true and correct, and incorporated herein by this reference.
SECTION 2. The City Council finds as follows:
a. Development Agreement No. 01-2022 is consistent with the provisions of the Development Agreement statutes, at Government Code section 65867.5. b. The proposed digital billboard conversion per Development Agreement No. 01- 2022 is consistent with the General Plan, including the General Plan Land Use and Economic Development policies in the Community Development Element.
These policies provide for comprehensive land use planning to preserve the overall mix of land uses and development in the community, which includes digital billboards, and provides for the pursuit and promotion of economic development to provide revenue to the City.
c. Development Agreement No. 01-2022 contains a provision for annual review of Developer's compliance with its terms, is limited in duration for thirty (30) years following final permit approvals unless duly extended following negotiations between the City and KBS Holdco, LLC, dba Regency Outdoor Advertising, and specifies the permitted use of the site related to the billboards and provisions for City access to the site when necessary.
Development Agreement No. 01-2022
Ordinance No. 771
2 d. The project, as proposed, is exempt from the provisions of the California Environmental Quality Act (CEQA), pursuant to 15303 (Class 3; New Construction or Conversion of Small Structures).
SECTION 3. Based upon substantial evidence presented to this City Council during the public hearing conducted with regard to the Application and set forth herein above, this City Council hereby approves Development Agreement No. 01-2022, attached hereto and by this reference incorporated herein. The Development Agreement is necessary to protect the public health, safety and general welfare and is reasonable and proper in accordance with the intent and purposes of Title 17 of the Irwindale Municipal Code. Therefore, the City Council hereby approves Development Agreement No. 01-2022 and authorizes its execution and all actions necessary to comply with its terms.
SECTION 4. The City Council hereby authorizes and directs the Mayor, Chief Deputy City Clerk to execute this Ordinance on behalf of the City of Irwindale forthwith upon its adoption.
SECTION 5. The Chief Deputy City Clerk Shall:
a. Certify to the adoption of this Ordinance and shall cause the same to be published and/or posted at the designated locations in the City of Irwindale; and
b. Forthwith transmit a certified copy of this Ordinance, by certified mail to the Applicant at the address of record set forth in the Application.
PASSED, APPROVED, AND ADOPTED this 261h day of July 2023.
ATTEST:
Laura M. Nieto, MMC
Chief Deputy City Clerk
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES } ss.
CITY OF IRWINDALE }
Development Agreement No. 01-2022
Ordinance No. 771
H. Manuel Ortiz, Mayor
3 I, Laura M. Nieto, Chief Deputy City Clerk of the City of Irwindale, do hereby certify that the foregoing Ordinance No. 771 was duly introduced by the City Council of the City of Irwindale, at a regular meeting held on the 12th day of July 2023, and was duly approved and adopted on second reading at its regular meeting held on the 25th day of July 2023, by the following vote of the Council:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
Recording Requested by And When
Recorded Return To:
CITY OF IRWINDALE
5050 N. Irwindale Avenue
Irwindale, CA 91707
Attn: City Clerk
Development Agreement No. 01-2022
Ordinance No. 771
Laura M. Nieto, MMC
Chief Deputy City Clerk
4 [Exempt from Recording Fee Per Gov. Code§ 6103
DEVELOPMENT AGREEMENT NO. 01-2022
This Development Agreement (the "Agreement") is entered into this 25th day of July, 2023 (the "Effective Date"), by and between the City of Irwindale, California municipal corporation (the "City"), and KBS Holdco, LLC, a California limited liability company dba Regency Outdoor Advertising (the "Developer").
RECITALS
A California Government Code Sections 65864 et seq. ("Development Agreement Law") authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purposes of strengthening the public planning process, encouraging private participation and comprehensive planning and identifying the economic costs of such development.
B. Developer is owner of the Out of Home Advertising Display, a lawfully permitted double-sided printed billboard ("Printed Billboard Structure") and real property, located adjacent to the 210 Freeway in the City of Irwindale, Assessor Parcel Number Numbers 8533-009-014, as more specifically described in Exhibit A and depicted at Exhibit C, attached hereto and incorporated herein (the "Site"), upon which it seeks to install a new lawfully permitted double-sided 14 x 48 or larger foot digital outdoor advertising billboard which is oriented toward the east and west bound 210 Freeway.
C. Pursuant to the terms of this Agreement, Developer seeks to replace the Printed Billboard Structure with one double-faced digital billboard (such digital billboard is referred to herein as the "Landmark Message Center"), having a Back to Back or Vshaped design with one face oriented towards westbound traffic and the other face oriented toward eastbound bound traffic off the 210 Freeway, using either the same billboard structure or a new billboard foundation and pole structure in generally the same location where the Printed Billboard Structure is currently located. The Landmark Message Center will have two faces, of approximately 14 feet by 48 feet, or approximately 672 square feet (each referred to individually herein as a "Digital Display Face"). The Landmark Message Center will be supported by a single post.
D. As owner of the Site, Developer has a legal and/or equitable interest in the Site and thus qualifies to enter into this Agreement in accordance with Development Agreement Law.
Development Agreement No. 01-2022
Ordinance No. 771
5 E. In exchange for the City approvals sought by Developer for installation of the Landmark Message Center as provided herein, Developer has offered to:
1. Pay to the City an annual Development Fee as defined and provided in Section 2.5 below, for the cost to the City to mitigate the impact of the installation of the Landmark Message Center; and
2. Provide advertising time on the Landmark Message Center on a spaceavailable basis to the City for public service, c1v1c causes, or emergency notifications at the discretion of the Irwindale Chief of Police.
F. The Site is zoned M-2 and designated by the General Plan land use map as Industrial/Business Park.
G. Developer and the City agree that a development agreement should be approved and adopted to memorialize the property expectations of the City and Developer, as more particularly described herein.
H. On June 21, 2023, at a duly noticed public hearing, the Planning Commission adopted Resolution No. 818(23), recommending approval of this Agreement including development of the Landmark Message Center as proposed in this Agreement, Ordinance No. 771 to the City Council and the filing of a Notice of Exemption pursuant to Section 15061(b)(3) of the California Environmental Quality Act ("CEQA") Guidelines.
I. On July 12, 2023, the City Council of the City, at a duly noticed hearing to consider the approval of this Agreement including development of the Landmark Message Center as proposed in this Agreement, considered the proposal, heard testimony, and introduced Ordinance No. 771 and the filing of a Notice of Exemption pursuant to Section 15061 (b)(3) of the CEQA Guidelines ..
J. The City Council has found that this Agreement is in the best public interest of the City and its residents, adopting this Agreement constitutes a present exercise of the City's police power, and this Agreement is consistent with the City's General Plan.
This Agreement and the proposed Development (as hereinafter defined) will achieve a number of City objectives, including utilizing the Site for a revenue-generating use. Upon any termination of the Term (as defined below) of this Agreement, Developer will remove the digital displays if an extension of this Agreement is not negotiated with City and shall have the right with City approval to convert the Landmark Message Center to a printed billboard with two facings.
K. On July 26, 2023, the City Council held the second reading on, and adopted Ordinance No. 771, thereby approving this Agreement.
L. The City finds and determines that all actions required of the City precedent to approval of this Agreement by Ordinance No.771 of the City Council have been duly and regularly taken.
Development Agreement No. 01-2022
Ordinance No. 771
6 M. The purpose of this Agreement is to set forth the rules and regulations applicable to the Development, which shall be accomplished in accordance with this Agreement, including the Scope of Development (Exhibit B) which sets forth a description of the Development and the Schedule of Performance (Exhibit D).
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having specific meanings, as defined below. These specially defined terms are distinguished by having the initial letter capitalized, when used in the Agreement. In addition to the terms defined in the Recitals above, the defined terms include the following:
1.1.1 "Agreement" means this Development Agreement and all attachments and exhibits hereto.
1.1.2 "City" means the City of Irwindale, a California municipal corporation.
1.1.3 "City Council" means the City Council of the City of Irwindale.
1.1.4 "Developer" means KBS Holdco LLC, California limited liability company, duly existing and operating, and its successors and assigns, doing business as Regency Outdoor Advertising at 9201 Sunset Blvd, West Hollywood, CA 90069.
1.1.5 "Development" means the installation, operation, improvement, replacement, upgrade, and maintenance of the Landmark Message Center on the Site and the undergrounding of all utilities from Southern California Edison's electrical source or an electrical source located elsewhere on Developer's property (e.g., from an electrical panel on a building situated on Developer's property) to the Landmark Message Center and all appurtenances thereto and all modifications and improvements placed by it, or with its authority, upon the Site, all in accordance with the Development Approvals and this Agreement, including the Scope of Development attached hereto as Exhibit B, Schedule of Performance attached hereto as Exhibit D, and all conditions of approval, and consistent with the approval from the California Department of Transportation Outdoor Advertising Division. The Developer is and shall remain the owner of the Development as a trade fixture and Developer is the owner of all of the sign permits to the Development.
1.1.6 "Development Approvals" means any and all permits or approvals necessary to carry out and complete the Development, including, but not limited to Ordinance No. 771, and as further described in Section 3.3 herein.
1.1.7 "Development Fee" shall have the definition given in Section 2.5 of Development Agreement No. 01-2022
Ordinance No. 771
7 this Agreement.
1.1.8 "Digital Display Face" shall have the meaning ascribed in the Recitals above.
1.1.9 "Effective Date" means the date inserted into the preamble of this Agreement, which is 30 days following approval of this Agreement by ordinance of the City Council, provided this Agreement is signed by Developer and the City.
1.1.10 "Fee Commencement Date" shall have the definition given in Section
2.5 of this Agreement.
1.1.11 "Final Permits" shall mean the final approval from the applicable governmental authorities and all required third party approvals, after the expiration of all applicable appeal periods, for any and all required permits to maintain and operate the Landmark Message Center as contemplated under this Agreement. .
1.1.12 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of the City, including, but not limited to, the City's General Plan, Municipal Code and Zoning Code, which govern development and use of the Site, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of the Landmark Message Center, and the design, improvement and construction standards and specifications applicable to the Development of the Site which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. Land Use Regulations shall also include the federal National Pollutant Discharge Elimination System ("NPDES") regulations and approvals from the California Department of Transportation Outdoor Advertising Division, to the extent applicable.
1.1.13 "Landmark Message Center" shall have the meaning ascribed in the Recitals above.
1.1.14 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device, a lender or each of their respective successors and assigns.
1.1.15 "Schedule of Performance" means the Schedule of Performance attached hereto as Exhibit D and incorporated herein.
1.1.16 "Scope of Development" means the Scope of Development attached hereto as Exhibit B and incorporated herein.
1.1.17 "Site" refers to the site described in Recital B and more specifically described an depicted on Exhibit A and Exhibit C attached hereto and incorporated herein.
1.1.18 "Subsequent Development Approvals" means any Development Development Agreement No. 01-2022
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8 Approvals issued subsequent to the Effective Date in connection with development of the Development, which shall include, without limitation, any changes to the Development Approvals.
1.1.19 "Subsequent Land Use Regulations" means any Land Use Regulations effective after the Effective Date of this Agreement (whether adopted prior to or after the Effective Date of this Agreement) which govern development and use of the Site.
1.1.20 "Term" shall have the meaning provided in Section 2.3, unless earlier terminated as provided in this Agreement.
1.1.21 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit A (Legal Description of Site), Exhibit B (Scope of Development), Exhibit C (the Site and Landmark Message Center pictorial), Exhibit D (Schedule of Performance).
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Developer with respect to the Development, including actions by the City on applications for Subsequent Development Approvals affecting the Site, shall be subject to the terms and provisions of this Agreement.
2.2 Interest in Site. The City and Developer acknowledge and agree that Developer has a legal or equitable interest in the Site and thus is qualified to enter into and be a' party to this Agreement under the Development Agreement Law.
2.3 Term of Agreement. Unless earlier terminated as provided in this Agreement, the term of this Agreement shall commence on the Effective Date and continue in full force and effect until the earlier of: (i) 30 years after the Fee Commencement Date; or (ii) the permanent removal of the Landmark Message Center constructed pursuant to the terms hereof, other than its removal for repair or replacement, or (iii) if one digital face is removed permanently and replaced with a static face, then this Agreement shall remain in effect for the remaining digital face ("Term"). If only one Digital Display Face is permanently removed from the Landmark Message Center and replaced with a printed billboard, the then-current Development Fee will be reduced by fifty percent (50%) and the Agreement will remain in full force and effect as to the remaining Digital Display Face. In such case, the replacement of one digital face with a static face shall require an amendment to this Agreement. Within thirty (30) days after the expiration or termination of this Agreement, the parties shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 9.1 below. If no extension or renewal of this Agreement is agreed to following its termination, then the digital displays shall come down but the static displays may remain.
2.4 Processing Fee. Developer has paid to City a processing fee ("Processing Fee") in the total amount of $16,857.60, which includes (1) the Development Agreement Development Agreement No. 01-2022
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9 application fee of $2,000.00 (2) Environmental Documentation fee of $250.00; (3) Development Agreement deposit of $10,000.00, as an initial deposit for the City Attorney costs of preparation (4) Public Hearing Notices deposit of $800.00; (5) a Noticing fee of $120.00; and (5) a 28% Administrative and Overhead fee of $3,587.50. The City shall retain and use the Processing Fee, or any part thereof, for any public purpose within the City's discretion. In addition to the Processing Fee, any additional City Attorney fees incurred by City in the preparation and negotiation of the Development Agreement and processing of Project Development Approvals at a rate not to exceed $400.00 per hour, plus the actual amount of the costs of the Public Hearing Notice ads, shall be Developer's responsibility to pay. The Processing Fee shall be separate from all fees which are standard and uniformly applied to similar projects in the City, including, but not limited to, business license fees (due by Developer to City annually), a one-time plan check fee and building permit fee, and any other fees imposed by the City as may be applicable.
Additionally, within 30 days of the City providing Developer with a final invoice of legal fees (subject to the above cap) or fees incurred by City related to the negotiation and preparation of this Agreement and Public Hearing Notice ads, Developer shall pay City any outstanding balance of such fees.
2.5 Development Fee. The potential impacts including those based on aesthetics of the Development on the City and surrounding community are difficult to identify and calculate. Developer and the City agree that an annual development fee paid by Developer to the City would adequately mitigate all such potential impacts, because that fee will provide City resources to install and maintain other aesthetic improvements throughout the community, including, but not limited to, landscaping, street medians, signs in public parks, street sweeping, street signs and street lighting. To that end, Developer and City agree that Developer shall pay an annual development fee paid per Digital Display Face to the City ("Development Fee") which would adequately mitigate all such potential impacts. The parties therefore agree that, subject to the obligations of Section 2.7 below, Developer shall pay an annual development fee to City of $35,000 per Digital Display Face, increased by twelve and one half percent (12.5%) at the 5th, 11th, 15th, 21st, and 25th payments ("Development Fee"). For ease of reference, the Development Fees shall equal the following amounts during the Term:
Payment Number Fee per Digital Display Fee for Landmark Face Message Center
IDeveloomentl
1 throuah 5 $35,000 $70,000
5 throuah 10 $39,375 $78,750
11 throuah 15 $44,297 $88,594
15 throuah 20 $49,834 $99,558
21 throuah 25 $55,053 $112,125
25 throuah 30 $53,071 $125, 142
The first Development Fee payment for the Project shall be due no later than one (1) year after the Landmark Message Center becomes fully operational or within thirty (30) days after Developer receives any income from the use of the Landmark Message Development Agreement No. 01-2022
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10 Center, whichever occurs first ("Fee Commencement Date"). On the one year anniversary of the Fee Commencement Date, Developer shall make the second Development Fee payment and then annually thereafter in accordance with the above pay schedule. Developer shall notify City within five (5) days after the Landmark Message Center becomes fully operational or within five (5) days of its receipt of any income received from use of the Landmark Message Center, whichever occurs first, for the purpose of determining the Fee Commencement Date. Nothing herein relieves the City from its contractual duty to issue all municipal building permits that are associated with the Project if Developer is in compliance with the terms of this Agreement. In compliance with the provisions of Government Code section 65865(e), City shall maintain the Development Fee it receives pursuant to this Agreement and other similar agreements in a separate capital facilities account to be expended for the purpose of enhancing and/or improving the aesthetics of the community within the City of Irwindale, such as through new street signs, street lighting, increased landscaping, heightened landscape maintenance, removal of code violations that impact the aesthetics of the community, and other related aesthetic uses.
2.5.1 Late Payment
(a) Penalty. The City may notify the Developer if the Development Fee is not received within ten (10) business days after the due date ("Late Notice"); there shall be no penalty if payment is made within ten (10) business days following the Late Notice. The date of the Late Notice shall mean the date that it is received by the Developer after it has been placed by the City in the U.S. Mail, certified mail with return receipt. Failure to sign the return receipt shall not affect the date Late Notice is given. If City does not issue a Late Notice, penalties will begin to accrue if payment is not made within thirty (30) calendar days of the Due Date.
Late payment penalties shall be calculated as follows: 5% of the Development Fee due and payable for the current year shall be added to the Development Fee for that year for failure to make the full payment within ten (10) business days of the Late Notice. As an example, the Development Fee for Year 5 is $70,000. A 5% penalty would result in a total amount due of $73,500 ($70,000 + $3,500). Thereafter, for each additional ten (10) calendar days that the full Development Fee is not paid, including the penalty, the Developer shall incur an additional penalty of 5% of that year's Development Fee, for a maximum penalty of 15% of that year's Development Fee.
(b) Termination. Notwithstanding anything to the contrary in Article 6 of this Agreement, failure by Developer to pay the Development Fee to the City within thirty (30) days following the due date of each year during the Term of this Agreement is considered a material breach of this Agreement, and if not paid in full to the City, including all late penalties, within ten (10) business days after written notice to Developer of such material breach, City may begin termination proceedings in accordance with Article 6 of Agreement.
Development Agreement No. 01-2022
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11 2.6 Prohibited Use. Developer shall not utilize any of the displays on the Landmark Message Center to advertise tobacco, marijuana, hashish, "gentlemen's clubs," adult entertainment businesses, sexually oriented materials, or use sexually oriented images or language, including, but not limited to, ads such as "Adult Con", vulgar or obscene images or language, or as may be prohibited by any City ordinance existing as of the Effective Date of this Agreement, or as may be amended or implemented from time-to-time after the Effective Date and equally-applicable to all outdoor advertising structures by any duly adopted and valid City ordinance.
2.7 Community Benefits. Developer shall also provide free of charge to City on a space-available basis, advertising space on the Landmark Message Center. Such advertising space shall only be made available for the use of City-related events or agencies, and shall be provided regardless of availability for emergency notifications at the discretion of the Chief of Police. City will be responsible for creating the design of any displays, subject to review and approval of a suggested copy from City by Developer, with such Developer approval not to be unreasonably withheld, conditioned or delayed.
Developer agrees to install, at no cost to the City, an unlit City emblem (the "City Logo") on the sign column of each Digital Display Face prior to project final. Said logo shall be provided to the Developer by the City, as further detailed in Exhibit 8 attached hereto.
2.8 Discount Advertising. Developer shall offer a twenty percent (20%) discount off its applicable rates for display of advertising on the Development to any business that is a member of the Irwindale Chamber of Commerce.
2.9 Assignment. Developer may assign or otherwise transfer this Agreement, or any part of this Agreement, to any other entity, upon presentation to the City of an assignment and assumption agreement in a form reasonably acceptable to the City Attorney and the City's written approval of such assignment or transfer by the City Manager, which shall not be unreasonably withheld if the assignee is able to demonstrate sufficient financial assets and experience in undertaking the obligations under this Agreement. However, Developer may, from time to time and one or more times, assign this Agreement, to another entity without City approval, but with written notice to the City, as long as (1) Developer has and maintains at least a twenty-five percent (25%) ownership interest in the assignee(s) or transferee(s); and (2) any assignee(s) or transferee(s) executes an assumption agreement assuming all of Developer's duties and obligations hereunder to the extent of the interest assigned or transferred. After a transfer or assignment as permitted by this Section, the City shall look solely to such assignee or transferee for compliance with the provisions of this Agreement which have been assigned or transferred.
2.10 Purpose. The purpose of this Agreement is to set forth the rules and regulations applicable to the Development, which shall be accomplished in accordance with this Agreement, including the Scope of Development (Exhibit 8) which sets forth a Development Agreement No. 01-2022
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12 description of the Development and the Schedule of Performance (Exhibit D).
3. DEVELOPMENT AND IMPLEMENTATION OF THE DEVELOPMENT.
3.1 Rights to Develop. Subject to and during the Term of this Agreement, Developer shall have the right to develop, operate and maintain the Site in accordance with, and to the extent of, the Development Approvals, the Land Use Regulations, and this Agreement, provided that nothing in this Agreement shall be deemed to modify or amend any of the pre-existing Land Use Regulations, as more particularly set forth in Section 3.2 below.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing permitted uses of the Site, the density and intensity of use of the Site, the maximum height and size of proposed structures on the Site, and the design, improvement and construction standards and specifications applicable to the Site, shall be as set forth in the Land Use Regulations which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement.
3.3 Development Approvals. Developer shall, at its own expense and before commencement of demolition, construction or development of any structures or other work of improvement upon the Site, secure or cause to be secured any applicable Development Approvals, which shall include and any and all permits and approvals which may be required by City or any other governmental agency or utility affected by such construction, development or work to be performed by Developer pursuant to the Scope of Development, including but not limited to, necessary building permits and all approvals required under the California Environmental Quality Act ("CEQA"). Not by way of limiting the foregoing, in developing and constructing the Development, Developer shall comply with all: (1) applicable development standards in the City's Municipal Code, (2) applicable NPDES requirements pertaining to the Development, and (3) all applicable building codes, except as may be permitted through approved variances and modifications.
Developer shall pay all normal and customary fees and charges applicable to such permits, and any fees and charges hereafter imposed by the City in connection with the Developnient which are standard and uniformly-applied to similar projects in the City.Nothing herein relieves the City from its contractual duty to issue all municipal building permits that are associated. with the Development if Developer is in compliance with the terms of this Agreement.
3.4 Timing of Development; Scope of Development. Developer shall comply with all time requirements set forth in the Schedule of Performance, attached hereto as Exhibit D. Developer shall convert the Printed Billboard Structure to the Landmark Message Center and such Landmark Message Center and both Digital Display Faces shall be fully operational not later than one (1) year after the issuance of Final Permits for the Landmark Message Center, or two (2) years after the Effective Date, whichever occurs first. If the Landmark Message Center is not fully operational within such time, and after compliance with Section 5.4, City may terminate this Agreement and shall have no Development Agreement No. 01-2022
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13 further obligation hereunder. However, City may allow for extensions of time for the conversions based on Developer's showing, and City's finding, of good cause for such delay, which extension shall be confirmed in writing by City to Developer. However, if circumstances within the scope of Section 9.10 delay the commencement or completion of the Development, then such delays shall not constitute grounds for any termination rights found within this Agreement. In such case, the timeline to commence or complete the relevant task shall be extended in the manner set forth at Section 9.10.
Notwithstanding the above, Developer shall, at all times, comply with all other obligations set forth in this Agreement regarding the construction or improvement of the Landmark Message Center. Developer shall also maintain the Landmark Message Center at all times during the Term in accordance with the maintenance provisions set forth in Section 3 of the Scope of Development, attached as Exhibit B herein.
3.5 Changes and Amendments. Developer may determine that changes to the Development Approvals are appropriate and desirable. In the event Developer makes such a determination, Developer may apply in writing for an amendment to the Development Approvals to effectuate such change(s). The parties acknowledge that the City shall be permitted to use its inherent land use authority in deciding whether to approve or deny any such amendment request; provided, however, that in exercising the foregoing reasonable discretion, the City shall not apply a standard different than that used in evaluating requests of other developers, developing the same or similar development as that contemplated under this Agreement. Accordingly, under no circumstance shall the City be obligated in any manner to approve any amendment to the Development Approvals, however approvals will not be unreasonably withheld provided that Devleoper has complied with all requirements then and effect and consistent with the requirements of any other similar developments. The City Manager shall be authorized to approve any non-substantive amendment to the Development Approvals without processing an amendment to this Agreement. The parties acknowledge that any extension of the Term for no more than twenty-four (24) months total is an example of a non-substantive change, which the City Manager, in his or her reasonable discretion, may approve in writing. All other amendments shall require the approval of the City Council.
No approvals or amendment is necessary for Developer to upgrade the digital displays installed pursuant to this Agreement during the Term of this Agreement to incorporate newer technology; provided Developer shall secure all applicable ministerial permits to do so and such upgrade is consistent with the dimensions and standards for the displays, as provided under this Agreement, Land Use Regulations and Subsequent Land Use Approvals.
3.6 Reservation of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development:
(a) Processing fees and charges of every kind and nature imposed by the City to cover the estimated actual costs to the City of processing Development Agreement No. 01-2022
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14 applications for Subsequent Development Approvals.
(b) Procedural regulations consistent with this Agreement relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. Notwithstanding the foregoing, if such change materially changes Developer's costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City.
(c) Changes adopted by the International Conference of Building Officials, or other similar body, as part of the then most current versions of the Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, or National Electrical Code, as adopted by the City as Subsequent Land Use Regulations, if adopted prior to the issuance of a building permit for development of the Landmark Message Center. Notwithstanding the foregoing, if such change materially changes Developer's costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City. (d) Regulations that are not in conflict with the Development Approvals or this Agreement.
(e) Regulations that are in conflict with the Development Approvals or this Agreement, provided Developer has given written consent to the application of such regulations to the Development.
(f) Applicable federal, state, county and multi-jurisdictional laws and regulations which the City is required to enforce against the Site or the Development, and that do not have an exception for existing signs or legal nonconforming uses.
3.6.2 Future Discretion of the City. This Agreement shall not prevent the City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Land Use Regulations.
3.6.3 Modification or Suspension by Federal, State, County, or MultiJurisdictional Law. In the event that applicable federal, state, county or multi-jurisdictional laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, and there is no exception for the legal nonconforming use, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such federal, state, county or multi-jurisdictional laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provision impractical to enforce.
Notwithstanding the foregoing, if such change materially changes Developer's costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City.
3.7 Regulation by Other Public Agencies. It is acknowledged by the parties Development Agreement No. 01-2022
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15 that other public agencies not subject to control by the City may possess authority to regulate aspects of the Development as contemplated herein, and this Agreement does not limit the authority of such other public agencies. Developer acknowledges and represents that, in addition to the Land Use Regulations, Developer shall, at all times, comply with all applicable federal, state and local laws and regulations applicable to the Development and the Site and that do not have an exception for a legal nonconforming use including but not limited to the Outdoor Advertising Act (Bus. & Prof. Code, Section 5200 et. seq.). To the extent such other public agencies preclude development or maintenance of the Development and do not have an exception for a legal nonconforming use, Developer shall not be further obligated under this Agreement except as provided in Section 4.1. Notwithstanding the foregoing, if such action by another public agency materially changes Developer's costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City.
3.8 Conflicts Between Subsequent Land Use Regulations and Agreement.
If any Subsequent Land Use Regulations prevents or precludes compliance with one or more provisions of this Agreement, then the provisions of this Agreement may, to the extent feasible, be modified as may be necessary to comply with such Subsequent Land Use Regulations. Immediately after enactment or promulgation of any such new Subsequent Land Use Regulations, City and Developer shall meet and confer in good faith to determine the feasibility of any such modification based on the effect such modification would have on the purposes and intent of this Agreement. If any Subsequent Land Use Regulations is passed prohibiting new or existing billboards, the City shall reasonably cooperate with Developer in any effort to find a resolution to bring this Agreement into compliance and preserve all the rights and benefits enjoyed by Developer. Developer and City shall have the right but are not obligated, to challenge the new Subsequent Land Use Regulations preventing compliance with the terms of this Agreement, and in the event such challenge is successful, this Agreement shall remain unmodified and in full force and effect. The City shall not directly or indirectly interfere with Developer's performance under the terms of this Agreement, and shall take no unreasonable action to delay, impede or restrict Developer's performance under the terms of this Agreement.
3.9 Public Improvements. Notwithstanding any provision herein to the contrary, the City shall retain the right to condition any Subsequent Development Approvals to requireDeveloper to pay subsequently required development fees, and/or construct certain subsequently required public infrastructure ("Exactions") at such time as the City shall determine, subject to the following conditions:
3.9.1 The payment or construction must be to alleviate an impact caused by the Development or be of benefit to the Development; and
3.9.2 The timing of the Exaction should be reasonably related to the development of the Development, and said public improvements shall be phased to be commensurate with the logical progression of the development of the Development, as Development Agreement No. 01-2022
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16 well as the reasonable needs of the public.
3.9.3 It is understood, however, that if the there is a material increase in cost to Developer, or such action by the City otherwise materially impacts Developer or its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City.
3.10 Fees, Taxes and Assessments. During the Term of this Agreement, the City shall not, without the prior written consent of Developer, impose any additional fees, taxes or assessments on all or any portion of the Development, except such fees, taxes and assessments as are described in or required by this Agreement and/or the Development Approvals. However, this Agreement shall not prohibit the application of fees, taxes or assessments upon the Site or Developer directly, including the following:
3.10.1 Developer shall be obligated to pay those fees, taxes or City assessments that existed as of the Effective Date and relate to the Landmark Message Center or are included in the Development Approvals;
3.10.2 Developer shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis such as, but not limited to, business license fees or taxes or utility taxes;
3.10.3 Developer shall be obligated to pay all fees applicable to a permit application as charged by the City at the time such application is filed by Developer;
3.10.4 Developer shall be obligated to pay any fees imposed pursuant to any Uniform Code that existed when the permit application is filed by Developer or that exists when Developer applies for any Subsequent Development Approval.
3.11 Changes. Notwithstanding anything to the contrary herein, if there is a change is such fees as compared to those fees in effect as of the Effective Date, or if any additional fees are charged and such additional or increased fees materially change Developer's costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City.
4. REMOVAL OF DIGITAL DISPLAY FACES
4.1 Removal by Developer. Developer has the right to negotiate an extension of the Term as an amendment to this Agreement. If the extension of the Term is not granted by the City, the Digital Display Faces shall be removed and said displays may be converted back to printed displays upon Developer's determination, subject to obtaining any required permits, for example, electrical or similar permits. Should City be required to enforce the terms of this Agreement and removal of the Digital Display Faces, Developer shall reimburse City its reasonable City staff, consultant, and attorneys' fees and costs incurred in securing such removal.
4.2 City's Right to Removal. Provided Developer is not in material breach Development Agreement No. 01-2022
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17 hereof past any applicable notice and cure period, City will not have the right to remove the Landmark Message Center. Should such a breach occur, City may only require removal of the Digital Display Faces within ninety (90) days of City's notice to Developer of such breach and Developer may convert said displays back to printed displays upon Developer's determination, subject to obtaining any required permits, for example, electrical or similar permits.
4.3 Relocation. The Development approved under this section and after the Development is installed and/or becomes nonconforming may be relocated by mutual agreement between the display owner and the City on whatever terms are agreeable to both parties under the authority of California Business and Professions Code section 5412. "Relocation" as used in this section, includes removal of an advertising structure and construction of a new advertising structure to substitute for the advertising structure removed. The purpose of this subsection is to allow the City to continue to develop in a planned manner without expenditure of public funds while allowing the continued maintenance of private investment and a medium of public communication established in outdoor advertising.
5. REVIEW FOR COMPLIANCE.
5.1 Annual Review. The City Council shall have the right to review this Agreement annually at the Developer's sole cost, on or before the anniversary of the Effective Date, to ascertain the good faith compliance by Developer with the terms of this Agreement ("Annual Review"). However, no failure on the part of the City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement. Upon receipt of written request from the City, Developer shall cooperate with the City in the conduct of such an Annual Review and provide the following information and documentation to the City at least thirty (30) days before the anniversary of the Effective Date: (1) description of all complaints from Caltrans or the City regarding the Landmark Message Center, (2) description of all complaints from the public regarding the display unrelated to any content of the message displayed, (3) any updates to Developer's contact information related to complaints concerning the billboards, as required in the conditions at Exhibit B, Section 6(q), herein, (4) status and amount of all payment obligations to the City required under this Agreement for the year in question and cumulatively for the entire Term of the Agreement, (5) any easement or lease changes that could in any way materially impact the City or the obligations under this Agreement, (6) any utility changes that could in any way materially impact the City or the obligations under this Agreement, (7) any maintenance issues addressed or needing to be addressed per the requirements of Exhibit B, and (8) whether any City messages per Section 2.6 have been displayed during the preceding year of the Term and a description of the duration of such displays.
5.2 Special Review. The City Council may, in its sole and absolute discretion, order a special review of compliance with this Agreement at any time at the City's sole cost ("Special Review"). Developer shall cooperate with the City in the conduct of such Development Agreement No. 01-2022
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18 any Special Review.
5.3 City Rights of Access. Subject to the City's execution of a permit to enter in a form reasonably acceptable to Developer, the City and its officers, employees, agents and contractors shall have the right, at their sole risk and expense, to enter the Site without interfering with any railroad or other right-of-way, and at all reasonable times with as little interference as possible, for the purpose of conducting the review under this Article 5, inspection, construction, reconstruction, relocation, maintenance, repair or service of any public improvements or public facilities located on the Site, or to perform any rights of the City under Section 4.2 above. Prior to any such entry by City, City will deliver Developer twenty-four (24) hour written notice of its intention to enter. This notice shall be delivered to Developer's office at 9201 Sunset Blvd., West Hollywood, CA 90069 (which serves as the mailing address for Developer's address identified in Section 1.1.4), during business hours. Any damage or injury to the Site or to the improvements constructed thereon resulting from such entry shall be promptly repaired at the sole expense of the City. Notwithstanding the foregoing or any other provision in this Agreement (including without limitation Section 4.2 above) to the contrary, the City shall have no right whatsoever to enter the Site unless and until the City executes and delivers to Developer a permit to enter in a form reasonably acceptable to Developer (except that this provision is not intended to interfere with the City's police powers to address any nuisance, dangerous condition, or other condition pursuant to the City's ordinances); provided Develpoper shall not unreasonably delay the approval of the permit to enter.
Notwithstanding anything to the contrary herein, in no event will the City's representatives ever climb up the pole of the Landmark Message Center during any inspection.
5.4 Procedure. Each party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with this Agreement, to explain the basis for such assertion, and to receive from the other party a justification of its position on such matters. If, on the basis of the parties' review of any terms of this Agreement, either party concludes that the other party has not complied in good faith with the terms of this Agreement, then such party may issue a written "Notice of Noncompliance" specifying the grounds therefor and all facts demonstrating such noncompliance. The party receiving a Notice of Non-Compliance shall have thirty (30) days to cure or remedy the non-compliance identified in the Notice of Non-Compliance, but if such cure or remedy is not reasonably capable of being cured or remedied within such thirty (30) day period, then the party receiving a Notice of Non-Compliance shall commence to cure or remedy the non-compliance within such thirty (30) day period and thereafter diligently and in good faith prosecute such cure or remedy to completion. If the party receiving the Notice of Non-Compliance does not believe it is out of compliance and contests the Notice of Non-Compliance, it shall do so by responding in writing to said Notice of Non-Compliance within thirty (30) days after receipt of the Notice of Noncompliance. If the response to the Notice of Non-Compliance has not been received in the office of the party alleging the non-compliance within the prescribed time period and the cure or remedy is not timely completed, the Notice of Non-Compliance shall be conclusively presumed to be valid and then either party can seek a judicial determination of all legal or equitable claims allaged and remedies sought. If a Notice of NonDevelopment Agreement No. 01-2022 Ordinance No. 771
19 Compliance is contested, the parties shall, for a period of not less than fifteen (15) days following receipt of the response, seek to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice of Non-Compliance. If the Notice of Non-Compliance is contested and the parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15) day period, the party alleging the non-compliance may thereupon pursue the remedies provided in Article 6. Neither party hereto shall be deemed in breach if the reason for non-compliance is due to "force majeure" as defined in, and subject to the provisions of, Section 9.10.
5.5 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review or a Special Review, Developer is found to be in compliance with this Agreement, the City shall, upon request by Developer, issue a written confirmation ("Certificate") to Developer stating that, after the most recent Annual Review or Special Review, and based upon the information known or made known to the City Manager and the City Council, that (1) this Agreement remains in effect, and (2) Developer is in compliance.
The Certificate, whether issued after an Annual Review or Special Review, shall be in recordable form and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer may record the Certificate with the County Recorder. Additionally, Developer may, at any time, request from the City a Certificate stating, in addition to the foregoing, which specific obligations under this Agreement have been fully satisfied with respect to the Site and City shall respond within Ten (10) days ofreceipt of the request. If the City fails to respond to a Developer's request pursuant to this Section 4.5, the Developer is presumed to be in compliance with this Agreement or any obligation that is the subject of the Developer's request.
6. DEFAULT AND REMEDIES.
6.1 Termination of Agreement.
6.1.1 Termination of Agreement for Material Default of Developer. The City, in its discretion, may terminate this Agreement for any material failure of Developer to perform any material duty or obligation of Developer hereunder or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default" or "breach"); provided, however, the City may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 5.4. In the event of a termination by the City under this Section 6.1.1, Developer acknowledges and agrees that the City may retain all fees accrued up to the date of the termination, including the Processing Fee and Development Fee paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee within sixty (60) days after the date of termination and removal of the Landmark Message Center to one foot below grade unless otherwise required in the City's Municipal Code that equates to the percentage of time elapsed in the year of the Term at the time of termination.
6.1.2 Termination of Agreement for Material Default of City. Developer, in its discretion, may terminate this Agreement for any material failure of City to perform any material duty or obligation of City hereunder or to comply in good faith with the term of Development Agreement No. 01-2022
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20 this Agreement; provided, however, Developer may terminate this Agreement pursuant to this Section only after following the procedure set forth in Section 5.4. In addition, Developer may terminate this Agreement if, despite Developer's good faith efforts, it is unable to secure the necessary permits and/or compliance with requirements under laws necessary to effectuate the Development. In the event of a termination by Developer under this Section 6.1.2, Developer acknowledges and agrees that City may retain all fees, including the Processing Fee and the Development Fee paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee within sixty (60) days after the date of termination and removal of the Landmark Message Center that equates to the percentage of time elapsed in the year of the Term at the time of termination.
6.1.3 Rights and Duties Following Termination. Upon the termination of this Agreement, niether party shall have any further right or obligation hereunder except with respect to (i) any obligations to have been performed prior to said termination, (ii) any default in the performance of the provisions of this Agreement which has occurred prior to said termination, (iii) Developer's obligation to remove the Landmark Message Center pursuant to Section 4.1, or (iv) any continuing obligations to indemnify, defend and hold harmless the other party.
6.1.4 No Damages. Notwithstanding anything else in this Agreement to the contrary, Developer acknowledges that the City would not have entered into this Agreement had it been exposed to damage claims from Developer for any breach hereof.
As such, the parties agree that in no event shall Developer be entitled to recover damages of any kind whatsoever against City or any of its officials, officers, agents or employees for breach of this Agreement.
7. INSURANCE, INDEMNIFICATION AND WAIVERS.
7 .1 Insurance.
7.1.1 Types of Insurance.
(a) Liability Insurance. Beginning on the Effective Date hereof and until completion of the Term, Developer shall, at its sole cost and expense, keep or cause to be kept in force for the mutual benefit of City, as additional insured, and Developer, comprehensive broad form general liability insurance against claims and liabilities covered by the indemnification provisions of Section 7.2. Developer has agreed to indemnify the City hereunder with respect to its use, occupancy, disuse or condition of the Site, improvements or adjoining areas or ways, affected by such use of the Site or for property damage, providing protection of at least Two Million Dollars ($2,000,000) for any one accident or occurrence for bodily injury or death and property damage. Developer shall also furnish or cause to be furnished to the City evidence that any contractors with whom Developer has contracted for the performance of any work for which Developer is responsible maintains the same coverage required of Developer. (b) Worker's Compensation. Developer shall also furnish or Development Agreement No. 01-2022
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21 cause to be furnished to the City evidence that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries worker's compensation insurance as required by Jaw. (c) Insurance Policy Form, Sufficiency, Content and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies qualified to do business by California with an AM Best Rating of no less than "A". All such policies shall be non-assignable and shall contain language, to the extent obtainable, to the effect that (i) the insurer waives the right of subrogation against the City and against the City's agents and representatives except as provided in this Section; (ii) the policies are primary and noncontributing with any insurance that may be carried by the City, but only with respect to the liabilities assumed by Developer under this Agreement; and (iii) the policies cannot be canceled or materially changed except after written notice by the insurer to the City or the City's designated representative as expeditiously as the insurance company agrees to provide such notice. Developer shall furnish the City with certificates and endorsements evidencing the insurance required in this Section 7.1. City shall be named as an additional insured on all liability policies of insurance required to be procured by the terms of this Agreement.
7.1.2 Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to the City, in the manner required for notices, copies of certificates and endorsements of all insurance policies required of each policy within the following time limits:
(a) For insurance required above, within seven (7) days after the Effective Date or consistent with the requirements of Exhibit D (Schedule of Performance), Item No. 5, whichever is earlier.
(b) The City can request to see updated copies of the current certificates and endorsements of all insurance policies required at any time.
If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish the City with required proof that the insurance has been procured and is in force and paid for, the City, after complying with the requirements of Section 5.4, may view such failure or refusal to be a default hereunder.
7.2 Indemnification.
7.2.1 General. Developer shall indemnify the City, and its officers, employees, and agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein "claims or liabilities") that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the work, operations, or activities of Developer, its agents, employees, contractors, subcontractors, or invitees, hereunder, upon the Site or to attack, set aside, void or annul, any approval of the City, its advisory agencies, appeal boards, or legislative body concerning this Agreement and related Resolutions or Ordinance approving this Development Agreement No. 01-2022
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22 Agreement. The City will promptly notify Developer of any such claim, action, or proceeding against the City and will cooperate fully in the defense. To this end, (a) Developer will defend any action or actions filed in connection with any of said claims or liabilities covered by the indemnification provisions herein and will pay all costs and expenses, including reasonable legal costs and attorneys' fees incurred in connection therewith.
(b) Developer will promptly pay any judgment rendered against the City or its officers, agents, or employees for any such claims or liabilities arising out of or in connection with such work, operations, or activities of Developer hereunder, and Developer agrees to save and hold the City and its officers, agents, and employees harmless therefrom.
7.2.2 Exceptions. The foregoing indemnity shall not include claims or liabilities arising from the sole negligence or willful misconduct of the City, or its officers, agents or employees who are directly responsible for the City.
7.2.3 Additional Coverage. Without limiting the generality of the foregoing, Developer's indemnity, defense, and hold harmless obligations shall include any liability arising by reason of:
(a) Any accident or other occurrence in or on the Site causing injury to any person or property whatsoever caused by Developer, its agents, employees, contractors, subcontractors, or invitees;
(b) Any failure of Developer to comply with performance of any of the provisions of this Agreement;
(c) Any harm, delays, injuries or other damages incurred by any party as a result of any subsurface conditions on the Site caused by Developer, its agents, employees, contractors, subcontractors, or invitees, including but not limited to, the presence of buried debris, hazardous materials, hydrocarbons, or any form of soil contamination.
7.2.4 Loss and Damage. Except as set forth below, the City shall not be liable for any damage to property of Developer or others located on the Site, nor for the loss of or damage to any property of Developeror others by theft or otherwise. Except as set forth below, the City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Site or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Site, or by any other cause of whatsoever nature. The foregoing two (2) sentences shall not apply (i) to the extent the City or its agents, employees, subcontractors, invitees or representatives causes such injury or damage when accessing the Site, or to the extent they cause any damage to any improvements thereon, or (ii) under the circumstances set forth in Section 6.2.2 above.
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23 7.2.5 Period of Indemnification. The obligations to indemnify, defend, and hold harmless under this Section 7.2 shall begin upon the Effective Date and shall survive expiration or sooner termination of this Agreement.
7.3 Waiver of Subrogation. Developer and the City mutually agree that neither shall make any claim against, nor seek to recover from the other or its agents, servants, or employees, for any loss or damage to Developer or the City or to any person or property relating to this Agreement, except as specifically provided hereunder, which include but is not limited to a claim or liability to the extent arising from the sole negligence or willful misconduct of the City, itsofficers, agents, or employees who are directly responsible for the City.
8. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Site or any portion thereof or any improvement thereon or the Development, by any mortgage, deed of trust or other security device securing financing with respect to the Site. The City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and the City agrees upon request, from time to time, to meet with Developer and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. Subject to compliance with applicable laws, the City will not unreasonably withhold its consent to any such requested interpretation or modification, provided the City determines such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Site shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Development or Site made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Development or Site, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from the City of any default by Developer in the performance of Developer's obligations under this Agreement.
(c) If the City timely receives a request from a Mortgagee requesting a copy of any Notice of Non-Compliance given to Developer under the terms of this Agreement, the City shall make a good faith effort to provide a copy of that Notice of Non-Compliance to the Mortgagee within ten (10) days of sending the Notice of Non-Compliance to Developer. The Mortgagee shall have the right, but not the obligation, to cure the noncompliance during the period that is the longer of (i) the remaining cure period allowed Developer under this Agreement, or (ii) sixty (60) days.
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24 ( d) Any Mortgagee who comes into possession of the Development or the Site, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Development or the Site, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Development or the Site acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement and the Development Approvals applicable to the Development or the Site or such part thereof so acquired by the Mortgagee.
9. MISCELLANEOUS PROVISIONS.
9.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within 10 days of execution, as required by Government Code Section 65868.5. Amendments approved by the parties, and any cancellation, shall be similarly recorded.
9.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
9.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable if that stricken term, provision, covenant or condition is not material to the main purpose of this Agreement, which is to allow the Development to be permitted and operated and to provide the Development Fee to the City; otherwise, this Agreement shall terminate in its entirety, unless the parties otherwise agree in writing, which agreement shall not be unreasonably withheld.
9.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting party or in favor of the non-drafting party, shall not be employed in interpreting Development Agreement No. 01-2022
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25 this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
9.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
9.6 Singular and Plural. As used herein, the singular of any word includes the plural.
9.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
9.8 Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
9.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
9.10 Force Majeure. Notwithstanding any provision to the contrary herein, neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, rains, winds, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the party's control (including the party's employment force), government actions and regulations (other than those of the City), court actions (such as restraining orders or injunctions), or other causes beyond the party's reasonable control.
If any such events shall occur the term of this Agreement then the time for performance shall be extended for the duration of each such event, provided that the Term of this Agreement shall not be extended under any circumstances for more than five (5) years beyond the date it would have otherwise expired, and further provided that if such delay is longer than six (6) months, Developer may terminate this Agreement upon written notice to City and City shall shall return to Developer any portion of the Development Fee paid for any period after the effective date of such termination.
9.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
9.12 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
9.13 Litigation. Any action at law or in equity arising under this Agreement or 26 Development Agreement No. 01-2022
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brought by any party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Los Angeles, State of California, or such other appropriate court in said county. Service of process on the City shall be made in accordance with California law.
Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between the City and Developer seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees.
9.14 Covenant Not To Sue. The parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable.
The parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other party to this Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable.
9.15 Development as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Development is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and Developer is that of a government entity regulating the development of private property, on the one hand, and the holder of a legal or equitable interest in such private property on the other hand. The City agrees that by its approval of, and entering into, this Agreement, that it is not taking any action which would transform this private development into a "public work" development, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer's private development into a public work project, it being understood that this Agreement is entered into by the City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement which are incorporated into this Agreement and made a part hereof, and that the City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Developer by this Agreement.
9.16 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions Development Agreement No. 01-2022
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27 contemplated by this Agreement.
9.17 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by the City of its power of eminent domain or Developer's right to seek and collect just compensation or any other remedy available to it.
9.18 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of development agreements. The parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non-material modifications may be approved on behalf of the City by the City Manager upon reasonable approval by the City Attorney.
9.19 Corporate Authority. The person(s) executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound.
9.20 Notices. All notices under this Agreement shall be effective when delivered by United States Postal Service mail, registered or certified, postage prepaid return receipt requested, and addressed to the respective parties as set forth below, or to such other address as either party may from time to time designate in writing by providing notice to the other party:
To the City:
With Copy to:
If to Developer:
City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: Julian A Miranda, City Manager
Aleshire & Wynder, LLP
18881 Von Karman Ave., #1700
Irvine, CA 92612
Attn: Adrian R. Guerra, City Attorney
KBS Holdco, LLC, dba Regency Outdoor Advertising
9201 Sunset Blvd
West Hollywood, CA 90069
Attn: Philip Berardi
9.21 Nonliability of City Officials. No officer, official, member, employee, agent, or representatives of the City shall be liable for any amounts due hereunder, and 28 Development Agreement No. 01-2022
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no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative.
9.22 No Brokers. The City and Developer each represent and warrant to the other that it has not employed any broker and/or finder to represent its interest in this transaction. Each party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorneys' fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder's fee in connection with this Agreement or arising out of agreements by the indemnifying party to pay any commission or finder's fee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above.
ATTEST:
By: ______________ _
Laura M. Nieto, MMC,
Chief Deputy City Clerk
APPROVED AS TO FORM:
By: _____________ _
Adrian R. Guerra, City Attorney
Development Agreement No. 01-2022
Ordinance No. 771
29 CITY OF IRWINDALE
By:
H. Manuel Ortiz, Mayor
KBS HOLDCO, LLC, A CALIFORNIA
LIMITED LIABILITY COMPANY OBA
REGENCY OUTDOOR ADVERTISING
By:
By: ____________ _
Name: ------------
Title: ------------
[End of signatures]
STATE OF CALIFORNIA )
) SS
COUNTY OF LOS ANGELES )
On 2023, before me,
______________ , a Notary Public, personally appeared
_____________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
Development Agreement No. 01-2022
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Notary Public
[SEAL]
30 STATE OF CALIFORNIA )
) SS
COUNTY OF LOS ANGELES )
On 2023, before me,
______________ , a Notary Public, personally appeared
_____________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
Development Agreement No. 01-2022
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Notary Public
[SEAL]
31 EXHIBIT A
LEGAL DESCRIPTION OF SITE
Real property in the City of Irwindale, County of Los Angeles, State of California, described as follows:
THE LANO REFERRED TO HEREIN BS.OW IS srn.JATED IN THE CITY OF IF~WINDALE, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,, AND IS DESCRIBED AS FOLLOWS:
THOSE PORTIONS OF THOSE PARCELS OF LAND JN SECTION 32, TOWNSHIP 1 NORTH, RANGE 10 WEST, OF THE SUBDIVISlON OF THE RANCHO AZUSA DE DUARTE, IN THE CITY OF IRWINDAlE, COUNTY OF LOS ANGELES, STATE. OF CALIFORNIA AS PER MAP RECORDED IN BOOK 6, PAGES 8Cl TO 62 INCLUSWE, OF MISCELLANEOUS RECORDS, UN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ACQUIRED BY THE STATE OF CALIFORNIA BY QUITCLAlM DEEP SS709 RECORDED IN BOOK l>4556. PAGE ·126, OF OFFICIAL RECORDS, IN SAID OFflCE; BY PARCEL 6 .OF THE FINAL ORDER OF CONDEMNATlot-.1 FILED IN SUPERIOR OOURT CASE NO. ~9802, IN AND FOR SAID COUNTY. A g~-g[k_EOR~g~~; ~D :~~~~~~E~A B~~~:~~~eg:ie~og~.g~~agE::~~o~a ~EE:-:~ SUPERIOR COURT CASE WO. 893840, IN AND FOR SAID COUNTY, A CERTIFIED COPY OF LAST SAID FINAL ORDER BEING RECORDED IN BOOK 03!13 T, PAGE 442 OF SND OFFICIAL RECORDS, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF THE LAND SO ACQUIRED BY QUITCLAIM DEED B5TOG; THENCE Al-ONG THE WESTERl.Y ktNF- OF SAID lAND N 0- 10' 23" W, 105.63 FEET TO A CURVE CONCAVE SOUTHERLY AND HAVING A MDIUS OF 2,000.00 FEfil; THENCE FROM A TANGENT Bi=ARING Nee· Zl' 12" E, EASTERLY ALONG SAID CURVE THROUGH AN ANGt.E OF 19' 00' os·. AN ARC DISTANCE .QF 3"3.30 ·FEET TO THE N0Fl.THWESTEH1. Y CURV"O LINE OF THAT CERTAIN EASEMENT OF ACCESS FOR RAILROAD SPUR TRACK PURPOSES, 20,00 f'El!:T WIDE, AS DESCRIBED IN 'THE EXCEPTION FROM SAID PARCEL 1A; THENCE SOUTHWESTERLY ALONG SAID NORTHWE:STERLY CURVED LINE TO THE WESTERLY LINE OF THE LANO DESCRIBED IN SAID PARCEL 1A; THENCE SOUTHERLY ALONG LAST SAID WESTERLY UNE TO THE NORTHERLY LINE OF THAT 50-FOOT·WIDE STRIP OF LAND SHOWN AS "ATCHISON. TOPEKA AND SANTA FE RAILWAY COMPANY" ON MAP OF TRACT NO. 13436, RECORDED fN BOOK 294. PAGES 20 AND 21, OF !MAPS, IN SAID OFFICE; THENCE WESTERLY ALONG SAID NORTHERLY LINE TO THE POINT OF a.eGLNNJNG.
ALSO SUSJl:::CT l'O THE i:::XCEf>TION ANO RESERVATION THEREFROM, ALL OIL, MINERALS, NATURAL GAS. AJND OTHER HYDROCARBONS av WHATSOEVER NAME KNOWN THAT MAY BE WITHIN OR lJNOER
THE HEREIN CONVEYED PARCEL OF LANO, AND THE RIGHTS THERETO, TOGETHER WITH CERTAIN OTHER CONDITIONS, AS EXCEPTED AND RESERVED IN QUITCLAIM DEED B570~ RECORDED IN BOOK D455S. PAGE 126, OF SAID OFFICIAL RECORDS. --
APN: 8533-0!)9,014;
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EXHIBITS
SCOPE OF DEVELOPMENT
Developer and the City agree that the Development shall be undertaken in accordance with the terms of the Agreement, which include the following:
1. The Development. This Agreement allows for conversion of one Printed Billboard Structure to one Landmark Message Center in accordance with the terms of this Agreement. The existing Printed Billboard Structure has double-sided printed displays.
The Landmark Message Center is a billboard with Digital Display Faces that uses digital technology to change the messages on the sign faces electronically. This type of display shall not contain video, animation, movement, flashing, or the appearance of movement.
The Digital Display Faces contain messages that are static for eight (8) seconds at a time and then change to the next message. To this end, Developer shall replace the existing Printed Billboard Structure with a 14 x 48 foot double-sided Back to Back or V-display Landmark Message Center, with Digital Display Faces facing east and west, at the same general location as the existing Printed Billboard Structure. Before the issuance of final inspection of the Final Permits, Developer shall underground all utilities necessary for the Landmark Message Center and the Site shall be maintained in accordance with the conditions at Paragraph 3 below. Developer shall operate and maintain the Landmark Message Center on the Site in accordance with the Development Approvals and this Agreement and all conditions of approval and consistent with the approval from the California Department of Transportation Outdoor Advertising Division.
The Landmark Message Center shall comply with Section 17.72.050, General Standards, of the Irwindale Municipal Code. Specifically, the area of the sign face shall not exceed six hundred seventy-two (672) square feet, excluding border, trim, cutouts and other special advertising features or additions and base or apron supports and other structural members. The building height may not exceed sixty-five (65) feet, exclusive of cutouts or special additions, measured from the higher of either: 1) the finished grade of the roadway adjacent to the lot on which the structure is located and from which the advertising display is to be viewed; or 2) the finished grade of the base of the sign.
Developer shall underground all utilities necessary for the Landmark Message Center.
The Landmark Message Center shall be constructed in the location shown therefor on Exhibit C. In addition, Developer agrees to install, at no cost to the City, an unlit City emblem (the "City Logo") on the sign column of the Landmark Message Center.
2. Processing Fees. Developer shall pay all applicable City Processing Fees, as described in Section 2.4 of this Agreement, prior to the time that a building permit is issued for the installation of the Landmark Message Center on the Site.
3. Building Fees. Developer shall pay all applicable City building fees at the time that a building permit is issued for the installation of the Landmark Message Center.
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4. Maintenance and Access. Developer, for itself and its successors and assigns, hereby covenants and agrees to be responsible for the following:
(a) Maintenance and repair of the Landmark Message Center (where authorized pursuant to the Agreement, and including but not limited to, the Digital Display Faces installed thereon, and all related on-site improvements and, if applicable, easements and rights-of-way, at its sole cost and expense), including, without limitation, landscaping, poles, lighting, signs and walls (as they relate to the Development) in good repair, free of graffiti, rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Site, unless those federal, state, and local bodies have an exception for a legal nonconforming use. Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal related to the Development; (ii) the care and replacement of all shrubbery, plantings, and other landscaping or the painted backing in a healthy condition if damaged by the Development; (iii) the ongoing maintenance by Developer of any access road to the Landmark Message Center to minimize dust caused by the Development; (iv) the repair, replacement and repainting of the Landmark Message Center's structures and displays as necessary to maintain such outdoor advertising structure in good condition and repair; and (v) the adequate and complete removal or painting over of all graffiti within 48 hours of notice of such graffiti being affixed on the Landmark Message Center. In addition, Developer has the explicit right to change the Light Emitting Diode ("LED") displays from time to time as determined necessary in Developer's sole discretion, subject to obtaining any required permits.
(b) Maintenance of the Landmark Message Center and surrounding portion of the Site in such a manner as to avoid the reasonable determination of a duly authorized official of the City that a public nuisance has been created by the absence of adequate maintenance of the Development such as to be detrimental to the public health, safety or general welfare, or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within three hundred (300) feet of the Site.
(c) Developer shall reasonably coordinate with any neighboring property owners who share utilities or access roads to their separate respective outdoor advertising structure. The City may designate alternative access for planning purposes so long as such alternative access allows Developer to access its outdoor advertising structure and related utilities.
5. Other Rights of the City. In the event of any violation or threatened violation of any of the provisions of this Exhibit B, then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions of the Agreement, the City shall have the right, after complying with Section 5.4 of the Agreement, (i) to enforce the provisions hereof by undertaking any maintenance or repairs required by Developer under Paragraph 3 above and charging Developer for any actual maintenance costs incurred in performing same, and (ii) to withhold or revoke until compliance by the Development Agreement 01-2022
Ordinance No. 771
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Developer, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Development or any part thereof or interests therein as to the violating person or one threatening violation.
6. No City Liability. The granting of a right of enforcement to the City does not create a mandatory duty on the part of the City to enforce any provision of the Agreement.
The failure of the City to enforce the Agreement shall not give rise to a cause of action on the part of any person. No officer or employee of the City shall be personally liable to Developer, its successors, transferees or assigns, for any default or breach by the City under the Agreement.
7. Conditions of Approval. The following additional conditions shall apply to the installation of the Landmark Message Center and, where stated, landscaping adjacent to Landmark Message Center, which outdoor advertising structure and landscaping or painted backing adjacent to the outdoor advertising structure, respectively, shall conform to all applicable provisions of the Development Approvals, the City's Municipal Code, including but not limited to the Outdoor Advertising provisions of Section 17.72.030, and the following conditions, in a manner subject to the approval of the Community Development Director or his or her designee:
(a) Conditions to be met before Final Permits. Prior to the issuance of a business license, occupancy permit, final inspection by the Community Development Department, and Final Permits, all applicable conditions of approval (except those involving construction permits) shall be completed to the reasonable satisfaction of the City.
(a) Building Permit. A building permit from the Building and Safety Division will be required, and structural calculations shall be prepared by a licensed civil engineer and approved by the City Building Official. All construction shall be in compliance with the Irwindale Building Code and all applicable regulations including Caltrans Advertising Department.
(b) Plans. The use and improvements authorized by this Agreement shall conform to the plans as finally approved by the City (date stamped ) as conditioned herein, and any appreciable modification of the plans or mode of operation, as determined by the Director of Community Development, shall require the prior approval of the Planning Commission.
(c) The Landmark Message Center shall be located in the portion of the Site shown on Exhibit C, and shall be of the dimensions described in Section 1, above. (d) Digital Display Face Dimensions. The size of each Digital Display Face of the Landmark Message Center shall not exceed a maximum area of 672 square feet, with no more than 128 total feet of extensions or borders, and the Landmark Message Center shall not exceed a maximum height of 65 feet, as measured per Section Development Agreement 01-2022
Ordinance No. 771
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17. 72.050 standards, including all extensions, and shall be consistent with the Elevations at Exhibit C approved by the City as part of the Development Approvals. ( e) Plan Check. Plans and specifications for the proposed installation of the Landmark Message Center, including plans for all utilities, shall be submitted to the City Community Development and Building Departments for plan check and approval prior to the issuance of building permits. Per the requirements of the County of Los Angeles Building and Safety Division, serving as the City's contract building department, the building plans must contain the following items to be submitted for plan check, as such requirements may be revised before final approval of such plans:
(1) Site Plan: Lot size, locations and dimensions of property lines, adjacent streets, setbacks from property lines, locations of other structures, easements, north arrow, scale, contours/drainage pattern. (2) General Notes: Applicable codes, occupancy classification, type of construction, allowable area analysis, and occupant load analysis, description of work, material specifications.
(3) Exterior Elevations: Wall covering material, plate and building heights, finish grade lines, veneers.
(4) Foundation Plan: Locations of all new footings, anchor bolt and holddown schedules, complete foundation details. (5) Framing Plan: Size, spacing, and span of all floor and ceiling joists, roof rafters, valleys and hips, beams and headers. All lateral force resisting elements, including shear wall locations and schedule, and diaphragm construction specifications.
(6) Structural Analysis: Calculations shall be provided to substantiate the structural plans where new structural elements are proposed or existing structural elements are altered. The structural calculations shall address both vertical and lateral forces, and shall be wet stamped and signed by a licensed engineer or architect registered in the state of California. (7) Schedules: exterior/interior finish.
(8) Details: Complete framing and foundation details for all new structural elements, complete accessible path of travel details, required fire rated assembly details.
(f) Prior to the approval of the final inspection, all applicable conditions of approval and all mandatory improvements shall be completed to the reasonable satisfaction of the City.
Development Agreement 01-2022
Ordinance No. 771
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(g) Developer shall maintain the Landmark Message Center and use thereof in full compliance with all applicable codes, standards, policies and regulations imposed by the City, county, state and federal agencies , unless the Development is exempted as a legal nonconforming use.
(h) Caltrans Approvals. Developer shall, at all times, comply with the approval for the Landmark Message Center from the California Department of Transportation Outdoor Advertising Division that may be necessary in order to allow for the construction and installation of the Landmark Message Center pursuant to the California Outdoor Advertising Act, and shall maintain acceptable clearance between the Landmark Message Center and utility distribution lines, include those of Southern California Edison.
(i) Fees. Developer shall pay any and all applicable fees due to any public agency prior to the final issuance of the applicable building or electrical permits.
U) Use Within Site. The activities proposed in the Agreement shall be conducted completely upon the Site and shall not use or encroach on any public right-ofway. (k) Access Roads. Developer shall ensure that all access to the Landmark Message Center is kept restricted to the general public to the extent permitted under local laws and by the Development Approvals.
(I) Landscaping. If any portion of the landscaping or painted backing installed adjacent to the Landmark Message Center is damaged by the Development or becomes damaged, unhealthy or otherwise in need of replacement, as determined by the City's Community Development Department Director or his or her designee, Developer shall ensure that the replacement is accomplished within fourteen (14) days of notification by the City, unless such time is extended by the City's Community Development Director or his or her designee if Developer shows unusual circumstances requiring more time to accomplish such replacement. Developer may trim such landscaping so as not to block the Landmark Message Center or with the reasonable consent of the City's Community Development Director, the Developer at the Developer's own cost, may remove and relocate any landscaping.
(m) Utilities. Developer shall be required to install all utilities underground in connection with the Landmark Message Center. Developer shall coordinate its work with the requirements of Southern California Edison to achieve the undergrounding of all utilities.
(n) All onsite equipment used in the operation of the digital display billboard shall be screened from sight and maintained for aesthetic and safety purposes.
Development Agreement 01-2022
Ordinance No. 771
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(o) Developer shall comply with all necessary federal National Pollutant Discharge Elimination System (NPDES) requirements pertaining to the proposed use, to the extent applicable.
(p) All graffiti shall be adequately and completely removed or painted over within 48 hours of notice to Developer of such graffiti being affixed on the Development.
(q) Prior to final sign off of the building permit for the Landmark Message Center, the applicable landscaping or painted backing shall be installed at the Site. (r) Light/Glare. Developer shall comply with State law regarding the limitation of light or glare or such other standards as adopted by the Outdoor Advertising Association of America, Inc. ("OAAA"), including but not limited to, the 0.3 foot-candles limitation over ambient light levels and ensuring additional flexibility in reducing such maximum light level standard given the lighting environment upon request by the City's Development Services Director or designee, the obligation to have automatic dimming capabilities, as well as providing the City's Develpoment Services Director or his or her designee with a designated Developer employee's phone number and/or email address for emergencies or complaints that will be monitored 24 hours a day/7 days per week.
Upon any reasonable complaint by the City's Development Services Director or designee, Developer shall dim the display to meet these guidelines and further perform a brightness measurement of the display using OAAA standards, or such lower level given the lighting environment, and provide the City with the results of same within 5 days of the City's complaint. Developer shall dim the display to the appropriate setting immediately upon the conclusion of any such measurement that concluded that the light standards were exceeded.
(s) Public Works:
NPDES. Developer shall comply with all necessary NPDES requirements pertaining to the proposed use, to the extent applicable.
ROW. Separate permits are required for all work within the public right-ofway. Developer shall be responsible for all fees for the necessary permits and construction inspections for work within the public-right-of-way.
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Ordinance No. 771
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EXHIBITC
SITE AND LANDMARK MESSAGE CENTER PICTORIAL
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Ordinance No. 771
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Development Agreement No. 01-2022
Ordinance No. 771
C-8
Development Agreement No. 01-2022
Ordinance No. 771
C-9
EXHIBIT D
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE
1. Effective Date of this
Agreement.
2. Developer prepares and submits
to City working drawings,
specifications, and engineering
for the Landmark Message
Center; City commences
annroval process.
3. Developer to provide copy of
Caltrans approval to City.
4. Developer to submit proof of
insurance to City.
5. The Landmark Message Center
shall be fully operational.
6. Developer pays City first
installment of Development Fee
if Developer receives Final
Permits.
7. Developer pays City second
installment and subsequent
Development Agreement No. 01-2022
Ordinance No. 771
TIME FOR PERFORMANCE
30 days following City
Council's second reading of
Ordinance.
Within 180 days of the
Effective Date
Prior to commencing any
inspections and work on the
Development.
Prior to commencing any
inspections and work on the
Development.
Not later than one (1) year
after the issuance of Final
Permits for the Landmark
Message Center, or two (2)
years after the Effective
Date, whichever occurs first.
Within 1 year after the
Landmark Message Center
becomes fully operational or
within 30 days after
Developer receives any
income from the use of the
Landmark Message Center,
whichever occurs first.
Upon each anniversary date
of the Fee Commencement
D-1
REFERENCE
1.1.9 Ex. B(6)(e)
Ex. B(6)(h)
7.1.2 3.4
2.5 2.5
ITEM OF PERFORMANCE TIME FOR PERFORMANCE REFERENCE
annual installments of the Date, as defined in Section
Development Fee if Developer 2.5 of this Agreement, for the receives Final Permits. Landmark Messaqe Center.
It is understood that this Schedule of Performance is subject to all of the terms and conditions of the text of the Agreement. The summary of the items of performance in this Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule of Performance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both Developer and the City.
Notwithstanding any extension of the Term in the manner described in, and subject to the provisions of Section 3.5 of the Agreement, the City Manager shall have the authority to approve extensions of time set forth in this Schedule of Performance without action of the City Council, not to exceed a cumulative total of 180 days.
Development Agreement No. 01-2022
Ordinance No. 771
D-2
ISi City Council
DSuccessor Agency
DHousing Authority
DReclamation Authority
DJoint Powers Authority
Date: July 26, 2023
I ~c Item 6 I
Cityq;'- !:=:--------'
IRWINDALE
AGENDA REPORT
To:
From:
Honorable Mayor and Members of the City Council
Julian Miranda, City Manager
Issue: Renewal of Contract Agreement with the City of Santa Fe Springs for City-Wide Traffic Signal Maintenance Services
City Manager's Recommendation:
That the City Council authorize the City Manager to execute an agreement with the City of Santa Fe Springs for city-wide traffic signal maintenance services.
Administrative Action:
Submitted by:
Eddie Chan,
Director of Engineering I Building Official
Prepared by:
Luis Pimentel, Associate Engineer
(626) 430-2296
Reviewed by:
Adrian R Guerra, City Attorney
Kambiz Borhani, Finance Director I City Treasurer
Approved by:
Julian A. Miranda, City Manager
01005.0006/908057.1
Electronically Approved
Electronically Approved